Loong vs. Commission on Elections

COMELEC’s constitutional power to “enforce and administer all laws and regulations relative to the conduct of an election” under Section 2(1), Article IX(C) of the 1987 Constitution carries with it all necessary and incidental powers to ensure free, orderly, honest, peaceful, and credible elections, including the implied authority to order a manual count of votes when an automated election system fails due to ballot-printing defects not attributable to the machines, and the failure would otherwise produce a grossly erroneous count that subverts the will of the electorate.

Congress enacted Republic Act No. 8436 on December 22, 1997, mandating the adoption of an automated election system. The system was first deployed in the May 11, 1998 regular elections in the Autonomous Region in Muslim Mindanao (ARMM), encompassing the Province of Sulu. COMELEC constituted a Task Force headed by Atty. Jose Tolentino, Jr. to exercise administrative oversight of the Sulu elections. While the casting of votes proceeded peacefully, the automated counting of votes for local officials at the Sulu State College immediately revealed critical failures in the system’s capacity to read and tally local ballots.

• Nature of the Action: Original petition for certiorari and prohibition under Rule 65, seeking to nullify COMELEC resolutions ordering a manual count of local ballots in Sulu during the May 11, 1998 ARMM automated elections, and to compel proclamation based on automated results.
• The Automated Counting and Discovery of Defects: At roughly 6:00 a.m. on May 12, 1998, at the Sulu State College counting center, election inspectors and watchers from the municipality of Pata alerted Atty. Tolentino to discrepancies: a mayoralty candidate obtained zero votes in the printed election returns despite multiple BEI members confirming they voted for him, while his opponent garnered 100% of the votes. Random sampling of ballots confirmed that votes for the first candidate were not being reflected. Technical experts consulted through long-distance calls determined that the machines were not defective; the errors were caused by misalignment of the ovals opposite candidates’ names in the local ballots as printed by the National Printing Office, causing the automated machines to credit votes to the wrong candidate. In the municipalities of Talipao, Siasi, Indanan, Tapul, and Jolo, local ballots were rejected outright because they bore wrong sequence codes—a security feature programmed into each municipality’s assigned machine. The machines thus could not read the misprinted local ballots.
• Emergency Meeting and Divergent Positions: At 12:30 p.m. on May 12, Atty. Tolentino suspended all counting and convened an emergency meeting at Camp General Bautista with gubernatorial candidates Loong, Tan, Jikiri, and Kimar Tulawie, congressional candidate Bensandi Tulawie, and senior military and police officers. Those who recommended a shift to manual counting included Brigadier Generals Espinosa and Subala, PNP Provincial Director Alejandrino, and candidates Tan and the Tulawies. Those who insisted on continuing automated counting were candidates Loong and Jikiri. Atty. Tolentino requested written position papers, which the parties submitted later that day.
• COMELEC’s Resolutions and Escalation: Still on May 12, private respondent Tan petitioned COMELEC to suspend automated counting province-wide. COMELEC en banc issued Minute Resolution No. 98-1747 ordering manual counting only in Pata. Before midnight, Atty. Tolentino transmitted his report and recommendation urging manual counting for the entire province, citing the misaligned ovals and wrong sequence codes, the impossibility of determining the full extent of ballot defects, and mounting political tension. The following day, May 13, 1998, COMELEC issued Minute Resolution No. 98-1750, directing that all counting machines and ballot boxes from Sulu be transported via C130 to the PICC in Manila for both automated and manual operations, under close COMELEC supervision. On May 15, 1998, Minute Resolution No. 98-1796 laid down specific rules for the manual count of local ballots and ordered a parallel manual count for all 18 municipalities.
• Petitioner’s Objection: On May 18, 1998, petitioner Loong formally objected to the manual count on grounds that it violated the mandatory automated counting under R.A. No. 8436, that the Pata ballots might have been tampered with, and that there was no legal basis for a parallel manual count.
• Transport and Safeguards: A meeting on May 14, 1998, attended by all parties, Lt. Gen. Joselin Nazareno, NAMFREL, and the media, finalized transport arrangements. Each political party was allowed at least one escort-watcher per municipality. Petitioner Loong himself submitted the names of his 18 designated escorts. Two C130 flights transported the ballots and machines on May 15, with all escorts on board. At the PICC, ballot boxes were kept in an open space; watchers maintained a 24-hour vigil from approximately five meters away. The ballots were later moved to five Pasay City public elementary schools for the manual count, again with party watchers present throughout. Certificates of canvass were signed by the chair, vice-chair, secretary, and party watchers.
• Manual Counting Rules under Resolution No. 98-1796: The rules provided for segregation of national and local ballots, counting of local ballots in piles of fifty, reading of votes by the chairman while the poll clerk and third member simultaneously accomplished the election returns and tally board, and a rule that if a voter shaded more ovals than the number of positions, no vote would be counted for any candidate. The manually counted local ballots were thereafter fed into the scanning machine for COMELEC reference. Five special boards were initially created, later augmented by 600 public school teachers from Pasay City.
• Results and Proclamation: The manual count showed private respondent Tan with 43,573 votes, intervenor Jikiri with 38,993, and petitioner Loong with 35,452 votes. Tan was proclaimed governor-elect on June 8, 1998. Notably, petitioner’s allies won two congressional seats, three out of eight provincial board seats, and four mayoral posts, a circumstance private respondent invoked to negate the allegation that the manual count was manipulated in his favor.

• Violation of R.A. No. 8436: Petitioner argued that the automated counting mandated by the law was exclusive and mandatory, and that manual counting was prohibited; the sole remedy for defective machines was replacement under Section 9 of the Act.
• Denial of Due Process: Petitioner contended that the assailed COMELEC resolutions were issued without prior notice and hearing to him.
• Risk of Fraud and Tampering: Petitioner maintained that manual counting opened opportunities for tampering with ballots, substitution of genuine ballots with counterfeit ones that the automated machines were programmed to reject, bribery of watchers, and dilatory pre-proclamation controversies—all of which automated counting was designed to eliminate.
• Absence of Legal and Factual Basis for Province-Wide Manual Count: Petitioner insisted that the automated count in municipalities other than Pata was functioning properly, and that the order for a parallel manual count in all 18 municipalities lacked any legal or factual justification.

• Broad Constitutional Mandate: Respondents argued that Section 2(1), Article IX(C) of the Constitution empowers COMELEC to enforce and administer all election laws, which necessarily includes the implied power to order a manual count when automated counting fails to reflect the true will of the electorate.
• Futility of Automated Counting: Respondents stressed that the errors were not machine-related but originated in the printing of the local ballots by the National Printing Office; replacing the machines would not have corrected the misaligned ovals or wrong sequence codes, and persisting with automated counting would have produced a grossly erroneous result.
• Imperative of Preserving Peace: Respondents underscored that Sulu’s history of violent elections and the rapidly deteriorating peace and order situation, confirmed by military and police recommendations for manual counting, made COMELEC’s decision a necessary prudential measure to avert bloodshed.
• Satisfaction of Due Process: Respondents asserted that petitioner was orally heard at the emergency meeting, submitted written position papers, designated escorts for the transport of ballots and machines, and had watchers present throughout the entire manual count—thereby receiving every reasonable opportunity to participate and object.
• Reliability of the Manual Count: Respondents pointed to the transparent conduct of the manual count, the absence of any complaint that the ballots could not be read, and the electoral outcome in which many candidates from petitioner’s camp won, as conclusive evidence that the results were honest and accurate.
• Impropriety of a Special Election: Respondents argued that the grounds for failure of election under Section 6 of the Omnibus Election Code did not exist, that the remedy had not been invoked before COMELEC, and that ordering a special election only for the governorship while all other Sulu officials had been proclaimed on the same count would deny equal protection.

• Propriety of Certiorari: Whether a petition for certiorari and prohibition under Rule 65 was the proper remedy to challenge the COMELEC resolutions ordering a manual count.
• Grave Abuse of Discretion — Manual Count: Whether COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in ordering a manual count of the local ballots in Sulu, in light of R.A. No. 8436 and the factual circumstances.
• Legal Basis for Manual Count: Whether the manual count had a legal basis, given that R.A. No. 8436 provided only for replacement of machines in case of systems breakdown and did not explicitly authorize manual counting.
• Due Process: Whether petitioner and intervenor were denied due process when COMELEC issued the assailed resolutions without prior notice and hearing.
• Special Election: Whether a special election for the position of governor of Sulu should be ordered on the ground that the manual count was illegal.

• Propriety of Certiorari: Certiorari was a proper remedy. Although administrative orders of COMELEC are generally not reviewable by certiorari, the issue was one of first impression, requiring interpretation of R.A. No. 8436 in relation to COMELEC’s constitutional powers, and was adjudicatory of the right to the governorship of Sulu. The Supreme Court’s certiorari jurisdiction under Section 7, Article IX(A) of the Constitution was thus properly invoked.
• Grave Abuse of Discretion — Manual Count: No grave abuse of discretion was established. The automated machines had objectively failed to correctly read or count local ballots in six municipalities due to misaligned ovals and wrong sequence codes—defects that were undisputed and not machine-related. Continuing with automated counting would have resulted in an erroneous count, a travesty of the electorate’s will, and likely bloodshed given the mounting tension. COMELEC’s order was a rational, urgent, and necessary response.
• Legal Basis for Manual Count: The manual count was legally justified. Section 9 of R.A. No. 8436 addressed machine breakdown but not ballot-printing defects; the law contained a gap. That gap was filled by Section 2(1), Article IX(C) of the 1987 Constitution, which vests COMELEC with the broad power “to enforce and administer all laws and regulations relative to the conduct of an election.” This provision grants COMELEC all necessary and incidental powers to achieve free, orderly, honest, peaceful, and credible elections. Counting is an integral part of the conduct of an election, and the Constitution did not envision a COMELEC powerless to count the votes when technology fails. Manual counting, under the circumstances, was the only viable alternative.
• Due Process: No denial of due process occurred. Petitioner and intervenor were given oral hearing at the May 12 emergency meeting, submitted written position papers, designated escorts who accompanied the transfer of the ballots and machines from Sulu to Manila, and had watchers observe the manual counting from beginning to end. The essential elements of notice and opportunity to be heard were amply satisfied.
• Special Election: A special election could not be ordered. First, the plea must be addressed to COMELEC en banc under Section 4 of R.A. No. 7166 in relation to Section 6 of the Omnibus Election Code, and petitioner never sought this remedy before COMELEC; it was a belated afterthought. Second, the substantive grounds for failure of election—force majeure, terrorism, fraud, or analogous causes—were absent; the voters had freely cast their votes, and the manual count correctly determined their will. Third, singling out the governorship for a special election while all other Sulu officials had been proclaimed and were serving on the basis of the same manually counted votes would violate the private respondent’s right to equal protection of the law.

• Implied Powers of COMELEC under Section 2(1), Article IX(C), 1987 Constitution — The constitutional grant of power to “enforce and administer all laws and regulations relative to the conduct of an election” is broad and elastic, encompassing all necessary and incidental means to hold free, orderly, honest, peaceful, and credible elections. Manual counting is an implied power when automated counting is rendered impossible by ballot defects and would otherwise produce a grossly erroneous result.
• Standard of Review for COMELEC Remedial Actions — COMELEC must be accorded considerable latitude in adopting means and methods to secure honest elections. Its choice of means, unless clearly illegal or constituting grave abuse of discretion, will not be judicially interfered with. “Clean elections control the appropriateness of the remedy.” (citing Cauton v. COMELEC and Pacis v. COMELEC)
• Certiorari over COMELEC Administrative Orders — Under Section 7, Article IX(A) of the Constitution, only final orders, rulings, and decisions of COMELEC are ordinarily subject to certiorari. Administrative orders may exceptionally be reviewed when they involve a legal issue of first impression, interpretation of election laws vis-à-vis the commission’s constitutional powers, and substantial rights requiring adjudication.
• Failure of Election — Exclusivity of COMELEC En Banc Jurisdiction — The declaration of a failure of election under Section 6 of the Omnibus Election Code, read with Section 4 of R.A. No. 7166, is a question of fact committed exclusively to COMELEC en banc after due notice and hearing. Courts will not order a special election absent a prior petition before COMELEC and a showing of the statutory grounds.
• Equal Protection in Election Proclamations — All elected officials proclaimed on the basis of the same count must be treated alike; the validity of one proclamation cannot be impugned in isolation without violating the equal protection clause.

• “It is plain that to continue with the automated count in these five (5) municipalities would result in a grossly erroneous count. It cannot also be gainsaid that the count in these five (5) municipalities will affect the local elections in Sulu. There was no need for more sampling of local ballots in these municipalities as they suffered from the same defects.”
• “Section 2(1) of Article IX(C) of the Constitution gives COMELEC the broad power ‘to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall.’ Undoubtedly, the text and intent of this provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections.”
• “Counting is part and parcel of the conduct of an election which is under the control and supervision of the COMELEC. It ought to be self-evident that the Constitution did not envision a COMELEC that cannot count the result of an election.”
• “In the performance of its duties, the Commission must be given a considerable latitude in adopting means and methods that will insure the accomplishment of the great objective for which it was created — to promote free, orderly, and honest elections. The choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with.” (quoting Cauton v. COMELEC)
• “When the sovereignty of the people expressed thru the ballot is at stake, it is not enough for this Court to make a statement but it should do everything have that sovereignty obeyed by all. Well done is always better than well said.”

• Filipino Engineering and Machine Shop v. Ferrer, 135 SCRA 25 (1985) — Interpreted the certiorari provision of Section 7, Article IX(A) as applying to final orders, rulings, and decisions; distinguished here because the question was of first impression and adjudicatory in nature.
• Sumulong v. COMELEC, 73 Phil. 288 (1941) — Relied upon for the principle that political questions must be dealt with realistically and that COMELEC, by virtue of its fact-finding facilities and experience, is in a peculiarly advantageous position to decide complex electoral controversies.
• Cauton v. COMELEC, 19 SCRA 911 (1967) — Applied for the doctrine that COMELEC must be given considerable latitude in adopting means to insure free, orderly, and honest elections, and that its choices will not be disturbed absent clear illegality or grave abuse of discretion.
• Pacis v. COMELEC, 25 SCRA 377 (1968) — Cited to reinforce that “clean elections control the appropriateness of the remedy,” supporting the manual count as the correct means under the circumstances.

• Section 7, Article IX(A), 1987 Constitution — Grants the Supreme Court certiorari jurisdiction over decisions, orders, or rulings of constitutional commissions. Applied to allow review of the COMELEC resolutions despite their administrative character, given the exceptional nature of the issue.
• Section 2(1), Article IX(C), 1987 Constitution — Empowers COMELEC to enforce and administer all laws and regulations relative to the conduct of elections. Served as the constitutional foundation for COMELEC’s implied authority to order a manual count.
• Section 9, Republic Act No. 8436 — Defines “systems breakdown in the counting center” and provides for use of available replacement machines. Held inapplicable because the counting errors were caused by ballot-printing defects, not machine failure.
• Section 6, Omnibus Election Code — Enumerates the grounds (force majeure, terrorism, fraud, or analogous causes) and procedure for declaring a failure of election. Applied to reject the prayer for a special election.
• Section 4, Republic Act No. 7166 — Requires that the declaration of failure of elections and calling of special elections be decided by COMELEC en banc by a majority vote after due notice and hearing. Applied to emphasize that the remedy must be first sought before COMELEC.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Buena, and Gonzaga-Reyes, JJ., concurred. (Pardo and Santiago, JJ., took no part.)

• Justice Panganiban — Dissented on the ground that COMELEC’s resort to manual counting violated the mandatory automated counting provisions of R.A. No. 8436. The dissent maintained that the results of the manual count should be set aside even in the absence of proven fraud, and that the sovereign choice of the electorate, as expressed through the manual count, ought not to be sustained when the means employed were outside the statutory framework.