Benito vs. Commission on Elections

A failure of election may be declared only when no voting has been held in a precinct due to force majeure, violence, or terrorism and the votes not cast are sufficient to affect the result; where the COMELEC finds that voting resumed after the disruption and the excluded votes cannot change the outcome, certiorari does not lie absent grave abuse of discretion.

Benito and Pagayawan were among eight candidates for municipal mayor of Calanogas, Lanao del Sur in the May 11, 1998 elections. Five precincts were clustered at Sultan Disimban Elementary School, and the failure-of-election dispute concerned three of them. The COMELEC en banc has exclusive power under Rep. Act No. 7166, Sec. 4 to postpone elections, declare a failure of election, or call a special election, while Sec. 6 of the Omnibus Election Code governs failure of election.

The May 11, 1998 elections in Calanogas, Lanao del Sur pitted Benito and Pagayawan against six other mayoral candidates. Five precincts were clustered at Sultan Disimban Elementary School: 15A (Barangay Tagoranao), 6A/6A1 (Barangay Luguna), 17A (Barangay Tambak), 2A/2A1 (Barangay Calalanoan), and 13A (Barangay Pindulonan). Voting began peacefully, but shortly before noon some thirty armed men appeared at the school premises and fired shots into the air, sowing panic among voters and election officials and causing them to scatter. A spot report issued by Captain Benedicto S. Manquiquis of the Alfa Company, 28th Infantry Battalion, 4th Infantry Division, Philippine Army, summarized that all of Calanogas, Lanao del Sur was suspended when more or less 30 armed men with cal. 30 LMG under mayoralty candidate Jabbar Macapodi Maruhom fired shots into the air, causing voters and BEIs to scamper in different directions.

The parties disputed what happened after the interruption. According to petitioner, the ballot boxes and other election materials were taken to the municipal hall by the military forces providing security, and voting never resumed even when voters who had not yet cast their ballots returned after the lawless elements left. Private respondent, on the other hand, averred that voting resumed when the armed men left at about 1:00 o'clock in the afternoon and continued without further untoward incidents until voting closed at 3:00 o'clock. He submitted a Final Incident Report issued by the same Captain Manquiquis stating that about one hour after the armed men fired shots, voting resumed in an orderly and peaceful manner until about 1500H without trouble, and that after 1500H, when no voter was in the premises, the different BEIs closed the casting of votes.

The ballot boxes for the five precincts at Disimban Elementary School were taken, together with those from the nineteen other precincts of Calanogas, to Marawi City for counting. The votes from precincts 15A, 6A/6A1, and 17A were excluded upon objection by petitioner's counsel, who, it was claimed, arrived only after the ballots from the other nineteen precincts had already been tabulated. After counting, Ibrahim Pagayawan received 927 votes, Zaipal Benito 879, and Amoran Macaborod 524; no data was available for Jabbar Maruhom. Private respondent won over petitioner by forty-eight votes.

The total votes cast in the three excluded precincts numbered forty-one: precinct 15A had 177 registered voters and 1 vote cast; precinct 6A/6A1 had 225 registered voters and 19 votes cast; and precinct 17A had 188 registered voters and 21 votes cast, for a total of 590 registered voters and 41 votes cast. Because private respondent would still lead petitioner by seven votes even if all forty-one votes from the three excluded precincts were counted in the latter's favor, private respondent was proclaimed mayor of Calanogas.

Petitioner then sought to declare a failure of election and to call special elections in the three precincts. The COMELEC gave more weight to Captain Manquiquis's final report stating that voting resumed an hour after the firing, and found that no failure of elections occurred in the five precincts. It noted that petitioner's counsel and the other candidates did not question the counting of votes for precincts 2A/2A1 and 13A, whose polling places were also in the same school, and that in precinct 15A only one vote had been cast at 11:45 A.M.; lack of interest may have been the problem.

• Failure of Election Due to Violence and Terrorism: Petitioner argued that a failure of election must be declared in precincts 15A, 6A/6A1, and 17A because voting was interrupted by the sudden and threatening arrival of armed goons of a rival candidate, and that a special election should be held on the ground of threats, violence, and terrorism.
• No Resumption of Voting: Petitioner maintained that voting never resumed after the interruption because the ballot boxes and other election materials were taken into custody by the military and brought to the municipal hall, even when voters who had not yet cast their ballots returned after the lawless elements left.
• Falsification of Final Incident Report: Petitioner characterized the Final Incident Report as a product of falsification because its alleged time and date of execution was "00A 111200H May 98" while the handwritten spot report was prepared at "00a 111300H May 98," and argued that the final report could not have been issued ahead of the initial report.
• Contradictory BEI Affidavits: Petitioner insisted on the genuineness of the affidavits attached to his amended petition, which were confirmed by a second set of affidavits repudiating those relied upon by private respondent, and denied that the BEI members executed the affidavits presented by private respondent, claiming their signatures were forged.
• No Opportunity to Object to Other Precincts: Petitioner alleged that he had no opportunity to object to the inclusion of precincts 2A/2A1 and 13A because his counsel, Atty. Hussein N. Mambuay, was not present, allegedly because the latter did not possess the prescribed identification for lawyers.
• Low Percentage of Votes Cast: Petitioner equated failure of elections with the low percentage of votes cast vis-à-vis the number of registered voters in the subject precincts.
• Parity with Other Lanao del Sur Precincts: Petitioner argued that a failure of elections should be declared in the questioned precincts because the COMELEC had declared a failure in other precincts in Lanao del Sur, relying on the Omnibus Order dated July 14, 1998.

• Resumption of Voting: Respondent countered that voting in fact resumed when the armed men left at about 1:00 o'clock in the afternoon, and that there were no further untoward incidents until voting closed at 3:00 o'clock.
• Final Incident Report: Respondent relied on the Final Incident Report issued by Captain Manquiquis stating that voting resumed in an orderly and peaceful manner about one hour after the armed men fired shots and continued until about 1500H without trouble.
• Afterthought Claim on Counsel's Absence: Respondent argued that petitioner's claim that his counsel had no opportunity to object because he lacked the prescribed identification appeared to be a mere afterthought, as petitioner never raised this particular issue in his earlier pleadings filed with the COMELEC.

• Grave Abuse of Discretion — Dismissal of Failure of Election Petition and Finding of Continued Voting: Whether the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing SPA No. 98-333, including SPC No. 98-159 consolidated with it, for lack of merit and in declaring that the elections in precincts 6A & 6A1, 15A, and 17A continued an hour after they were suspended based on the Final Report of Captain Manquiquis.
• Failure of Election/Special Election: Whether the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in not holding a special election in precincts 15A, 6A & 6A1, and 17A on the ground of failure of election or of a suspended election before the closing of voting at 3:00 o'clock in the afternoon of May 11, 1998 on the ground of threats, violence, and terrorism.
• Annulment of Proclamation: Whether the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in not annulling the certificate of proclamation of private respondent dated May 15, 1998.

• Grave Abuse of Discretion — Dismissal of Failure of Election Petition and Finding of Continued Voting: No. The COMELEC's finding that voting resumed was a factual question not proper for certiorari under Rule 65, and petitioner failed to show grave abuse of discretion.
• Failure of Election/Special Election: No. The two preconditions for failure of election were not met: the COMELEC found voting resumed, and the 41 excluded votes could not affect the mayoral result.
• Annulment of Proclamation: No. With no failure of election and the remaining votes insufficient to change the lead, the COMELEC did not gravely abuse its discretion in affirming the proclamation.

• Grave Abuse of Discretion — Dismissal of Failure of Election Petition and Finding of Continued Voting: The SC began with the standard for certiorari: grave abuse of discretion means such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or exercise of power in an arbitrary or despotic manner by reason of passion or personal hostility, patent and gross enough to amount to evasion of positive duty or virtual refusal to perform the duty enjoined or to act at all in contemplation of law; it is not enough that a tribunal abused its discretion, the abuse must be grave. Petitioner's claim that voting never resumed, against private respondent's claim that it resumed peacefully at about one o'clock, raised a question of fact not proper for inquiry in a Rule 65 petition. The SC also declined to judge which of Captain Manquiquis's two incident reports deserved more credence; the alleged inconsistency was more imaginary than real because the time in the final incident report referred to the time of the occurrence of the incident, not the time of execution of the report. Nor would the SC pass upon the authenticity of the contradictory BEI affidavits, as evaluation of evidentiary matters is beyond the province of certiorari. The COMELEC did not gravely abuse its discretion in refusing to credit either party's version; petitioner's selective objection to only three of the five precincts in the same school, and his claim that his counsel was absent for lack of prescribed identification, which was not raised earlier and appeared an afterthought, further supported the dismissal.
• Failure of Election/Special Election: Under Sec. 6 of the Omnibus Election Code, and Hassan vs. Commission on Elections, two preconditions must exist before a failure of election may be declared: (1) no voting has been held in any precinct or precincts due to force majeure, violence, or terrorism; and (2) the votes not cast therein are sufficient to affect the results of the election. The cause may arise before or after the casting of votes or on the day of the election. The COMELEC found that voting resumed after the armed men left and that no failure of elections occurred in the five precincts; it gave more weight to Captain Manquiquis's final report and noted that no objection was raised to the counting of votes for precincts 2A/2A1 and 13A in the same school. The 41 excluded votes could not affect the mayoral result because Pagayawan would still lead by seven votes even if all were counted for Benito. The SC held that low turnout did not equate to failure of election: there can be failure only if the will of the majority has been defiled and cannot be ascertained, and if it can be determined it must be respected; no law requires that a majority of registered voters cast their votes, and a winning candidate needs only a plurality of valid votes. Even if less than 25% of the electorate in the questioned precincts cast their votes, the same must still be respected. Under Sardea vs. Commission on Elections, the power to throw out or annul an election should be exercised with the utmost care and only under circumstances demonstrating beyond doubt that the disregard of law was fundamental or persistent and continuous, making it impossible to distinguish lawful from unlawful votes or arrive at any certain result, or that the great body of voters was prevented by violence, intimidation, and threats from exercising the franchise. The SC also rejected petitioner's reliance on the COMELEC's declaration of failure in other Lanao del Sur precincts; in Pangandaman vs. Commission on Elections, the SC upheld the same Omnibus Order and held that the propriety of declaring total failure of elections is a factual issue and the COMELEC, through its deputized officials, is in the best position to assess actual conditions, with its factual findings binding absent grave abuse.
• Annulment of Proclamation: The COMELEC affirmed the proclamation of private respondent because the remaining uncounted votes would no longer affect the lead of the winning candidate for mayor. Since the SC found no grave abuse in the COMELEC's refusal to declare a failure of election and in its finding that voting resumed, it likewise found no grave abuse in the COMELEC's refusal to annul the certificate of proclamation dated May 15, 1998. The petition for certiorari was dismissed for lack of merit.

• Failure of Election — Under Sec. 6 of the Omnibus Election Code, failure of election may be declared when, due to force majeure, violence, terrorism, fraud, or analogous causes, the election in any polling place has not been held on the fixed date, or was suspended before the hour fixed by law for closing, or after voting and during preparation and transmission of election returns or in custody or canvass thereof results in a failure to elect, and the failure or suspension would affect the result. Hassan vs. Commission on Elections requires two preconditions: (1) no voting held in any precinct due to force majeure, violence, or terrorism; and (2) votes not cast are sufficient to affect the result. Applied: the COMELEC found voting resumed; the 41 excluded votes could not erase the 48-vote lead.
• Grave Abuse of Discretion — Such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or exercise of power in an arbitrary or despotic manner by reason of passion or personal hostility, patent and gross enough to amount to evasion of positive duty or virtual refusal to perform the duty enjoined or to act at all in contemplation of law. The abuse must be grave. Applied: no grave abuse was shown in the COMELEC's factual findings.
• Factual Questions Not Reviewable in Rule 65 — Whether voting resumed and the credibility of incident reports and contradictory affidavits are factual matters; evaluation of evidentiary matters is beyond the province of certiorari. Applied: the SC declined to substitute its judgment for the COMELEC's.
• Determinate Will of the Electorate; Low Turnout — Failure of election exists only if the will of the majority has been defiled and cannot be ascertained; if determinable, it must be respected. No law requires a majority of registered voters to cast votes; a winning candidate needs only a plurality of valid votes, regardless of the actual number of ballots cast. Applied: low turnout in the three precincts did not warrant a failure of election.
• Annulment of Election — The power to throw out or annul an election is exercised with utmost care and only under circumstances demonstrating beyond doubt that the disregard of law was fundamental or persistent and continuous, making it impossible to distinguish lawful from unlawful votes or arrive at a certain result, or that the great body of voters was prevented by violence, intimidation, and threats from exercising the franchise. Applied: no such circumstances existed; the proclamation was affirmed.
• COMELEC's Factual Findings and Expertise — Findings of fact of the COMELEC or an administrative agency exercising particular expertise are binding on the Court absent grave abuse of discretion; the COMELEC, through its deputized officials, is in the best position to assess actual conditions. Applied: the SC upheld the COMELEC's assessment of conditions in Lanao del Sur in Pangandaman vs. Commission on Elections and refused to disturb the resolution.

• "two (2) pre-conditions must exist before a failure of election may be declared, thus: (1) no voting has been held in any precinct or precincts due to force majeure, violence or terrorism; and (2) the votes not cast therein are sufficient to affect the results of the election." — The SC adopts Hassan's two preconditions for declaring a failure of election.
• "such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law." — The SC states the standard for grave abuse of discretion in a Rule 65 petition.
• "There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained. But, if it can be determined, it must be accorded respect. After all, there is no provision in our election laws which requires that a majority of registered voters must cast their votes. All the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast." — The SC rejects low voter turnout as a basis for failure of election.
• "The power to throw out or annul an election should be exercised with the utmost care and only under circumstances which demonstrate beyond doubt either that the disregard of the law had been so fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatsoever, or that the great body of voters have been prevented by violence, intimidation and threats from exercising their franchise [citations omitted]" — The SC adopts Sardea's standard for annulling an election.

• Hassan vs. Commission on Elections, 264 SCRA 125, 131 (1996) — Controlling precedent; supplied the two preconditions for failure of election.
• Sardea vs. Commission on Elections, 225 SCRA 374, 383 (1993) — Relied on for the standard governing annulment of elections.
• Pangandaman vs. Commission on Elections, G.R. No. 134340, November 25, 1999 — Relied on; upheld the same Omnibus Order and held COMELEC factual findings binding absent grave abuse.
• Mitmug vs. Commission on Elections, 230 SCRA 54, 61 (1994) — Quoted for the rule that failure of election depends on whether the will of the majority can be ascertained, not on majority turnout.
• Cuison vs. Court of Appeals, 289 SCRA 159 (1998) — Cited for the definition of grave abuse of discretion.
• Tañada vs. Angara, 272 SCRA 18 (1997) — Cited for the rule that the abuse of discretion must be grave.
• Republic vs. Villarama, 278 SCRA 736 (1997) — Cited for the same rule that abuse must be grave.

• Section 6, Omnibus Election Code (Batas Pambansa Blg. 881) — Defines failure of election and authorizes the COMELEC, on verified petition and after notice and hearing, to call for the holding or continuation of the election not held, suspended, or resulting in a failure to elect, not later than 30 days after the cessation of the cause. Applied: the SC used its terms and the Hassan requisites to test the COMELEC's refusal to declare a failure of election.
• Section 4, Rep. Act No. 7166 — Vests in the COMELEC en banc the exclusive power to postpone, declare a failure of election, or call a special election. Applied: the COMELEC en banc issued the assailed August 10, 1998 Resolution.
• Rule 65, 1997 Rules of Civil Procedure — Governs a petition for certiorari on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction. Applied: the SC dismissed the petition because petitioner raised factual questions and failed to show grave abuse.