Dibaratun vs. Commission on Elections

A failure of elections may be declared under Section 6 of the Omnibus Election Code where voting in a polling place was suspended before the hour fixed by law for the closing of voting on account of violence, and the votes not cast would have affected the result of the election. The COMELEC en banc’s factual findings on such grounds are binding on the Supreme Court absent grave abuse of discretion.

Abdul Gaffar P.M. Dibaratun and re-electionist Abdulcarim Mala Abubakar were candidates for Punong Barangay of Barangay Bagoainguid, Tugaya, Lanao del Sur, in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections. Precinct No. 6A/7A had 151 registered voters. The case implicates the COMELEC’s constitutional and statutory authority to enforce election laws and to declare a failure of elections under Section 6 of the Omnibus Election Code, as reflected in Section 2, Rule 26 of the COMELEC Rules of Procedure and Section 4 of R.A. No. 7166.

Abdul Gaffar P.M. Dibaratun and re-electionist Abdulcarim Mala Abubakar were candidates for Punong Barangay of Barangay Bagoainguid, Tugaya, Lanao del Sur, in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections. Precinct No. 6A/7A had 151 registered voters. On July 15, 2002, at around 10:30 a.m., the casting of votes began at the designated polling place at Cayagan Elementary School.

According to Abubakar, while only ten voters had voted, Alipecry Acop Gaffar, son of Dibaratun, entered the polling place and was caught in possession of three filled-up ballots on which Dibaratun had been voted, which he sought to insert into the ballot box. When confronted by Abubakar’s watcher and other watchers, Alipecry became angry and committed violence that disrupted and stopped the casting of votes. In the commotion, the chairman left the ballot box, which was held by Alipecry’s companions; the box was destroyed, the official ballots inside were taken, and a bundle of substituted ballots was inserted. Voting was stopped and never resumed, and only ten of the 151 registered voters had voted. Candidates for Barangay Chairman and Barangay Kagawad were also unable to vote. The Election Officer, knowing there was a failure of election in the precinct, recommended that a special election be called.

Abubakar further alleged that, unknown to him, the Board of Election Inspectors, in conspiracy and connivance with Dibaratun, surreptitiously and clandestinely canvassed the election returns and illegally proclaimed Dibaratun, issuing a Certificate of Canvass of Votes and Proclamation of Winning Candidates dated July 16, 2002 that was antedated. Dibaratun and the other respondents in the COMELEC petition denied the allegations. They contended that because ten voters had actually voted, there was no failure of elections in the precinct, and that the petition was filed out of time.

In resolving the petition, the COMELEC en banc found that both petitioner and private respondent submitted affidavits agreeing that the voting was suspended before the hour fixed by law by reason of violence, but each blamed the other for the violence. The letter of Mayor Abdul Jabbar Mangawan A.P. Balindong to Chairman Benjamin Abalos, Sr., the joint affidavit of Norhata M. Ansari and Sahara T. Guimba, Poll Clerk and Third Member of the Board of Election Inspectors, and the joint affidavit of PO1 Yahya M. Dirindigun and PO1 Casary C. Modasir stated that Abubakar and his relatives and followers started the violence. The affidavits submitted by Dibaratun’s witnesses stated that Dibaratun and his followers and relatives caused the violence that resulted in the suspension of the election after only ten people managed to vote. The COMELEC en banc ruled that since both parties agreed the elections were suspended before the hour fixed by law due to violence caused by undetermined persons, there was a failure of elections in the precinct. It found that only 10 voters were able to cast their votes out of 151 registered voters, so the votes not cast would have affected the result of the elections.

• Timeliness and Finality of Proclamation: Petitioner argued that the COMELEC en banc gravely abused its discretion in giving due course to Abubakar’s petition because it was filed out of time, and that the validity of Dibaratun’s July 16, 2002 proclamation could no longer be legally assailed after ten days.
• Estoppel and Failure to Object: Petitioner maintained that Abubakar was estopped from asserting his rights under election laws because he failed to make proper objections during the casting, counting, and canvassing of votes, and that the COMELEC erred in hearing and considering the petition.
• Failure of Elections: Petitioner contended that the COMELEC en banc gravely abused its discretion in declaring a failure of elections in Precinct No. 6A/7A and calling for special elections.
• Pre-Proclamation Controversy and Procedure: Petitioner argued that Abubakar’s petition was in the nature of a pre-proclamation controversy under Section 241 of the Omnibus Election Code, but that Abubakar failed to comply with the procedures for such a controversy.
• Docket Fees: Petitioner also contended that Abubakar failed to pay the docket fees on time.

• Violence and Suspension of Voting: Respondent Abubakar’s petition alleged that Alipecry Acop Gaffar, son of petitioner, entered the polling place with three filled-up ballots voted for Dibaratun, and that when confronted, he committed violence that disrupted and stopped the casting of votes.
• Destruction of Ballot Box and Substituted Ballots: Respondent alleged that the ballot box was destroyed, the official ballots inside were taken, and a bundle of substituted ballots was inserted.
• Illegal Proclamation: Respondent alleged that the Board of Election Inspectors, in conspiracy with Dibaratun, surreptitiously canvassed the election returns and illegally proclaimed Dibaratun through an antedated Certificate of Canvass dated July 16, 2002.
• Special Election: Respondent alleged that the Election Officer recommended a special election because of the failure of election.

• Grave Abuse of Discretion — Failure of Elections: Whether the COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in declaring a failure of elections in Precinct No. 6A/7A and annulling petitioner’s proclamation.
• Nature of Petition / Pre-Proclamation Controversy: Whether Abubakar’s petition was in the nature of a pre-proclamation controversy under Section 241 of the Omnibus Election Code and required compliance with pre-proclamation procedures.
• Timeliness: Whether the petition for declaration of failure of elections was filed out of time, considering the ten-day period in Section 252 for election contests.
• Docket Fees: Whether respondent’s failure to pay docket fees on time warranted dismissal.

• Grave Abuse of Discretion — Failure of Elections: No. The COMELEC en banc did not commit grave abuse of discretion; it acted pursuant to Section 6 of the Omnibus Election Code and Section 4 of R.A. No. 7166 after finding that voting was suspended before the hour fixed by law due to violence and that the votes not cast would have affected the result.
• Nature of Petition / Pre-Proclamation Controversy: No. The petition was for declaration of failure of elections under Section 6, not a pre-proclamation controversy under Section 241; the COMELEC en banc properly took cognizance under Section 4 of R.A. No. 7166.
• Timeliness: No. Section 6 and Section 2, Rule 26 of the COMELEC Rules of Procedure provide no prescriptive period; even if treated as an election contest under Section 252, the July 26, 2002 petition was within ten days from the July 16, 2002 proclamation.
• Docket Fees: The issue cannot be raised for the first time on appeal; it was not raised before the COMELEC.

• Grave Abuse of Discretion — Failure of Elections: The 1987 Constitution vests in the COMELEC broad power to enforce election laws and plenary authority to decide all questions affecting elections except the right to vote. Section 6 of the Omnibus Election Code allows a declaration of failure of elections when, among others, the election in any polling place had been suspended before the hour fixed by law for closing on account of force majeure, violence, terrorism, fraud, or analogous causes. The COMELEC en banc, citing Banaga, Jr. vs. Commission on Elections, enumerated three instances when a failure of elections may be declared. 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 of the elections. The cause must be force majeure, violence, terrorism, fraud, or other analogous causes. The COMELEC based its declaration on the second instance—suspension of the election before the hour fixed by law due to violence. The affidavits of both parties agreed that voting was suspended before the hour fixed by law due to violence, though they disagreed on the perpetrator. Only 10 of 151 registered voters voted, so the votes not cast would have affected the result. These factual findings are binding on the Supreme Court; certiorari against COMELEC is confined to grave abuse of discretion amounting to lack or excess of jurisdiction. No grave abuse was present because the COMELEC acted on the evidence and the law. When there is a failure of elections, the COMELEC is empowered to annul the elections and call for special elections.
• Nature of Petition / Pre-Proclamation Controversy: Abubakar’s petition fell under Section 6 of the Omnibus Election Code. The allegations constituted one of the instances for the declaration of failure of elections. The COMELEC en banc took cognizance under Section 4 of R.A. No. 7166, which provides that postponement, declaration of failure of election, and calling of special elections under Sections 5, 6, and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote, and that the causes may occur before or after the casting of votes or on the day of the election. The issue before the COMELEC was whether the evidence supported the allegation that violence suspended the elections before the hour fixed by law, resulting in a failure of elections. This did not fall under pre-proclamation controversies. The issues that may be ventilated in a pre-proclamation controversy are enumerated in Section 243: illegal composition or proceedings of the board of canvassers; incomplete, materially defective, tampered, falsified, or discrepant election returns; returns prepared under duress, threats, coercion, or intimidation, or obviously manufactured or not authentic; and substitute or fraudulent returns in controverted polling places canvassed with material effect on the standing of the aggrieved candidate. A petition to declare a failure of elections is neither a pre-proclamation controversy under Section 5(h), Rule 1 of the Revised COMELEC Rules of Procedure nor an election case, as held in Borja, Jr. vs. Commission on Elections.
• Timeliness: Petitioner’s basis for untimeliness was Section 252 of the Omnibus Election Code, covering election contests for barangay offices, where a petition is filed with the proper municipal or metropolitan trial court within ten days after the proclamation of the results. Even if the petition were an election contest, it was filed on July 26, 2002, within ten days from Dibaratun’s proclamation on July 16, 2002. However, the petition was not an election contest under Section 252 but a petition for declaration of failure of elections under Section 6. Section 6 and Section 2, Rule 26 of the COMELEC Rules of Procedure do not provide a prescriptive period for such a petition. The COMELEC en banc has discretion whether to take cognizance of the petition. The petition was filed 11 days after the scheduled election. The COMELEC declared the untimeliness allegation moot because the petition had already been heard and submitted for resolution. The resolution was in keeping with the COMELEC’s function to ensure free, orderly, honest, peaceful, and credible elections.
• Docket Fees: The allegation that Abubakar failed to pay the docket fee on time did not appear to have been raised before the COMELEC; hence, it could not be raised for the first time on appeal.

• Failure of Elections under Section 6, Omnibus Election Code — The COMELEC may declare a failure of elections when, on account of force majeure, violence, terrorism, fraud, or other analogous causes, (1) the election in any polling place has not been held on the date fixed; (2) the election had been suspended before the hour fixed by law for the closing of voting; or (3) after voting and during the preparation and transmission of election returns or in the custody or canvass thereof, the election results in a failure to elect; and in any such case the failure or suspension would affect the result. Two conditions must concur: no voting took place or the election resulted in a failure to elect; and the votes not cast would have affected the result. The Court applied this where voting was suspended before closing due to violence and only 10 of 151 registered voters voted.
• COMELEC’s Factual Findings and Grave Abuse of Discretion — Findings of fact of the COMELEC en banc on grounds for failure of election are binding on the Supreme Court because they involve questions of fact determinable by the COMELEC after notice and hearing. Certiorari against COMELEC is confined to grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse implies capricious and whimsical exercise of judgment equivalent to lack of jurisdiction, or arbitrary exercise of power by reason of passion, prejudice, or personal hostility, so patent or gross as to amount to evasion of a positive duty or virtual refusal to perform the duty enjoined or to act at all in contemplation of law. No such abuse was present.
• Pre-Proclamation Controversy Distinguished from Failure of Elections — A petition to declare a failure of elections under Section 6 is not a pre-proclamation controversy under Section 241 or Section 5(h), Rule 1 of the Revised COMELEC Rules of Procedure, nor an election case. Pre-proclamation controversies are limited to the issues enumerated in Section 243 of the Omnibus Election Code, such as illegal composition or proceedings of the board of canvassers, defective or tampered returns, returns prepared under duress, and substitute or fraudulent returns. The issue of whether violence suspended voting and caused failure of elections is outside that enumeration.
• No Prescriptive Period for Failure of Elections Petition — Section 6 of the Omnibus Election Code and Section 2, Rule 26 of the COMELEC Rules of Procedure do not provide a prescriptive period for filing a petition for declaration of failure of elections. The COMELEC en banc has discretion whether to take cognizance of such a petition. Even if treated as an election contest under Section 252, the petition filed on July 26, 2002 was within ten days from the July 16, 2002 proclamation.
• COMELEC en banc Authority under R.A. No. 7166 — Section 4 of R.A. No. 7166 provides that postponement, declaration of failure of election, and calling of special elections under Sections 5, 6, and 7 of the Omnibus Election Code shall be decided by the COMELEC sitting en banc by majority vote, and the causes may occur before or after the casting of votes or on election day. The COMELEC properly acted en banc.
• Issues Not Raised Below Cannot Be Raised for First Time on Appeal — The contention that respondent failed to pay docket fees on time was not raised before the COMELEC and could not be raised for the first time on appeal.

• "The findings of fact of the COMELEC en banc are binding on this Court. The grounds for failure of election (i.e., force majeure, violence, terrorism, fraud, or other analogous cases) involve questions of fact, which can only be determined by the COMELEC en banc after due notice to and hearing of the parties." — States the binding effect of the COMELEC’s factual findings and explains why the Supreme Court generally defers to the COMELEC on failure-of-election grounds.
• "Before the COMELEC can act on a verified petition seeking to declare a failure of elections, 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 of the elections." — Sets out the two concurring conditions for a failure-of-elections declaration, which the Court applied to the suspension of voting in Precinct No. 6A/7A.
• "A petition to declare a failure of elections is neither a pre-proclamation controversy as classified under Sec. 5 (h), Rule 1 of the Revised COMELEC Rules of Procedure, nor an election case." — Defines the procedural character of a failure-of-elections petition and distinguishes it from pre-proclamation controversies and election contests.
• "Petitioner’s allegation of grave abuse of discretion by public respondent COMELEC en banc implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise of the power in an arbitrary manner by reason of passion, prejudice, or personal hostility; and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law." — Provides the canonical formulation of grave abuse of discretion used to test the COMELEC’s acts on certiorari.

• Banaga, Jr. vs. Commission on Elections, G.R. No. 134696, July 31, 2000, 336 SCRA 701 — Cited by the COMELEC en banc for the three instances when a failure of elections may be declared; the Supreme Court discussed the same enumeration in its analysis.
• Soliva vs. Commission on Elections, G.R. No. 141723, April 20, 2001, 357 SCRA 336 — Cited for the COMELEC’s broad power to enforce election laws and its expertise, such that its findings and conclusions are generally respected by and conclusive on the Court.
• Immam vs. Commission on Elections, G.R. No. 134167, January 20, 2000, 322 SCRA 866 — Cited for the rule that the findings of fact of the COMELEC en banc are binding on the Supreme Court.
• Matalam vs. Commission on Elections, G.R. No. 123230, April 18, 1997, 271 SCRA 733 — Cited for the rule that an application for certiorari against actions of the COMELEC is confined to instances of grave abuse of discretion amounting to lack or excess of jurisdiction.
• Borja, Jr. vs. Commission on Elections, G.R. No. 120140, August 21, 1996, 260 SCRA 604 — Cited for the rule that a petition to declare a failure of elections is neither a pre-proclamation controversy nor an election case.
• Sangcopan vs. Comelec, citing Land Bank of the Philippines vs. Court of Appeals, G.R. No. 129368, August 25, 2003, 409 SCRA 455 — Cited for the definition of grave abuse of discretion as capricious and whimsical exercise of judgment equivalent to lack of jurisdiction.

• 1987 Constitution — Vests in the COMELEC the broad power to enforce all laws and regulations relative to the conduct of elections and the plenary authority to decide all questions affecting elections except the question as to the right to vote. The Court relied on this grant of authority in upholding the COMELEC en banc’s action.
• Section 6, Omnibus Election Code — Provides the instances for declaration of a failure of elections, including suspension of the election before the hour fixed by law for the closing of voting on account of force majeure, violence, terrorism, fraud, or analogous causes, where the failure or suspension would affect the result. The Court applied this provision to the suspension of voting in Precinct No. 6A/7A.
• Section 2, Rule 26, COMELEC Rules of Procedure — Reflects Section 6 of the Omnibus Election Code. The Court noted that it, like Section 6, does not provide a prescriptive period for filing a petition for declaration of failure of elections.
• Section 4, Republic Act No. 7166 — Provides that postponement, declaration of failure of election, and calling of special elections under Sections 5, 6, and 7 of the Omnibus Election Code shall be decided by the COMELEC sitting en banc by a majority vote of its members, and that the causes may occur before or after the casting of votes or on the day of the election. The COMELEC en banc properly took cognizance of the petition under this provision.
• Section 241, Omnibus Election Code — Petitioner invoked this provision in arguing that Abubakar’s petition was a pre-proclamation controversy. The Court rejected the argument because the petition was for declaration of failure of elections under Section 6.
• Section 243, Omnibus Election Code — Enumerates the issues that may be ventilated in a pre-proclamation controversy. The Court used this enumeration to distinguish the failure-of-elections issue from pre-proclamation controversies.
• Section 252, Omnibus Election Code — Covers election contests for barangay offices and requires filing with the proper municipal or metropolitan trial court within ten days after proclamation. The Court noted that even if the petition were an election contest, it was timely filed on July 26, 2002, within ten days from the July 16, 2002 proclamation.
• Section 5(h), Rule 1, Revised COMELEC Rules of Procedure — Classifies pre-proclamation controversies. The Court held that a petition to declare a failure of elections is not such a controversy.
• Section 5, Republic Act No. 9164 — Provides for the hold-over capacity of the incumbent Punong Barangay pending the conduct of special elections. The COMELEC en banc invoked this provision in its dispositive resolution.
• Rule 64 in relation to Rule 65, Rules of Court — The basis of Dibaratun’s petition for certiorari before the Supreme Court.

The decision lists the following under “WE CONCUR,” with notes that Roberto A. Abad was on official leave and Jose C. Mendoza was on leave: Reynato S. Puno (Chief Justice), Antonio T. Carpio, Renato C. Corona, Conchita Carpio Morales, Presbitero J. Velasco, Jr., Antonio Eduardo B. Nachura, Teresita J. Leonardo-De Castro, Arturo D. Brion, Lucas P. Bersamin, Mariano C. Del Castillo, Roberto A. Abad (on official leave), Martin S. Villarama, Jr., Jose P. Perez, and Jose C. Mendoza (on leave).