Mitmug vs. Commission on Elections

There is no failure of election where voting was actually conducted in the contested precincts, even if voter turnout was less than 25%, unless no voting took place or the election resulted in a failure to elect and the votes not cast would affect the result.

Sultan Mohamad L. Mitmug and Datu Gambai Dagalangit were rival candidates for mayor of Lumba-Bayabao, Lanao del Sur, a municipality with sixty-seven precincts. Failure of election is governed by Sec. 2, Rule 26 of the COMELEC Rules of Procedure, lifted from Sec. 6, B.P. Blg. 881, otherwise known as the Omnibus Election Code of the Philippines, which authorizes the calling of a special election only upon concurrence of defined conditions after verified petition, notice and hearing.

Petitioner Sultan Mohamad L. Mitmug and private respondent Datu Gambai Dagalangit, together with Datu Elias Abdusalam and Datu Bagato Khalid Lonta, were candidates for mayor of Lumba-Bayabao, Lanao del Sur, during the May 11, 1992 election. The municipality had sixty-seven precincts. Voter turnout was abnormally low, particularly in forty-nine precincts where only 2,330 out of 9,830 registered voters, or an average of 22.26%, cast votes. Five of these precincts — Precinct Nos. 18-B-1, 28, 28-A, 30 and 30-A — did not conduct actual voting at all.

Thereafter, COMELEC ordered a special election on May 30, 1992 in the five precincts which failed to function, and another special election on July 30, 1992 for a sixth precinct, Precinct No. 22-A. In the interim, petitioner sought annulment of the May 30, 1992 special election alleging alteration, tampering and substitution of ballots. Other mayoralty candidates filed separate petitions: private respondent sought a special election in Precinct No. 22-A alleging torn ballots; Datu Elias Abdusalam sought failure of election in twenty-nine more precincts due to alleged tampering and clustering; private respondent sought exclusion of ballots in six precincts for violated ballot boxes; and Datu Bagato Khalid Lonta sought failure of election in all sixty-seven precincts for massive disenfranchisement.

When the new Board of Election Inspectors was formed for the July 25, 1992 special election, petitioner impugned its creation. Nevertheless, on July 30, 1992 the new Board convened and began canvassing, and on July 31, 1992 private respondent was proclaimed duly elected mayor. Because no relief followed, petitioner on August 3, 1992 commenced the instant proceedings to declare failure of election in forty-nine precincts where less than a quarter voted, and on August 10, 1992 filed an election protest covering all precincts, expressly informing the trial court of the pendency of G.R. No. 106270.

• Failure of Election – Massive Disenfranchisement: Petitioner argued that failure of election should be declared in forty-nine precincts where less than a quarter of the electorate voted due to alleged terrorism and unlawful clustering of precincts.
• Due Process – Denial Without Hearing: Petitioner maintained that COMELEC acted with grave abuse of discretion in denying motu proprio and without due notice and hearing the petitions, despite meritorious grounds which should at least have been heard under the COMELEC Rules requiring summary hearing within twenty-four hours.
• Annulment of Special Election: Petitioner argued that the special election conducted on May 30, 1992 was tainted by alteration, tampering and substitution of ballots, and impugned the creation of the new Board of Election Inspectors for the July 25, 1992 special election.

• Abandonment by Election Protest: Respondents countered that with the filing of an election protest before the Regional Trial Court of Lanao del Sur, petitioner is already deemed to have abandoned the instant petition.

• Effect of Election Protest: Whether the filing of an election protest with the Regional Trial Court is deemed an abandonment of the petition for certiorari seeking to annul the election.
• Grave Abuse – Summary Denial Without Hearing: Whether respondent COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in denying motu proprio and without due notice and hearing the petitions to declare failure of election.
• Failure of Election – Low Voter Turnout: Whether abnormally low voter turnout, massive disenfranchisement, terrorism and unlawful clustering constitute failure of election warranting a special election where actual voting took place.

• Effect of Election Protest: No. Jurisdiction was retained because petitioner expressly informed the trial court of the pending certiorari petition and pursued it, the protest having been filed only ex abundante ad cautela.
• Grave Abuse – Summary Denial Without Hearing: No. Denial outright without hearing was proper where the verified petitions showed on their face the absence of the concurring conditions to declare failure to elect.
• Failure of Election – Low Voter Turnout: No. Low turnout does not constitute failure of election where precincts functioned and actual voting occurred; results by plurality of valid votes must be respected and irregularities belong in an election contest.

• Effect of Election Protest: Where only an election protest ex abundante ad cautela is filed, jurisdiction to hear a petition seeking to annul an election is retained, petitioner having stated in paragraph 3 of his protest that G.R. No. 106270 assailing the proclamation was pending and evincing intent to pursue rather than abandon it. A petition to annul an election is also not a pre-proclamation controversy, so proclamation and assumption of office do not impede prosecution to its logical conclusion.
• Grave Abuse – Summary Denial Without Hearing: Although Sec. 4, Rule 27 requires notice within twenty-four hours and Sec. 6, Rule 27 requires summary hearing, a verified petition does not automatically entitle petitioner to a hearing. Under Sec. 2, Rule 26, lifted from Sec. 6, B.P. Blg. 881, two conditions must concur before COMELEC acts: (a) no voting took place on the date fixed or, even if there was voting, the election resulted in failure to elect, due to force majeure, violence, terrorism, fraud or analogous causes; and (b) the failure or suspension would affect the result. Absent facial showing of both, outright denial involves no abuse of discretion, much less grave, and there is no need to receive evidence.
• Failure of Election – Low Voter Turnout: The second condition was indubitably present since votes not cast would affect the outcome, but the first was missing because actual voting and election by registered voters in the forty-three additional precincts took place. Terrorism and other irregularities as a rule may not be invoked to declare failure of election and disenfranchise the electorate through misdeeds of a few; they are better ventilated in an election contest, otherwise losers would always cry fraud and elections would never be carried out. Failure in a political unit exists only if the will of the majority has been defiled and cannot be ascertained; no law requires a majority of registered voters to cast votes, only election by plurality of valid votes.

• Failure of election; two concurring requisites — Before COMELEC can declare a failure of election and call a special election, two conditions must concur: first, no voting has taken place in the precincts on the date fixed by law or, even if there was voting, the election nevertheless results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes; and second, the votes not cast would affect the result of the election. Applied here, the second requisite was met but the first was absent as to forty-three precincts where actual voting occurred, so denial was justified.
• Facial sufficiency; outright denial without hearing — A verified petition for failure of election must show on its face that the conditions to declare a failure to elect are present; in their absence the petition must be denied outright without need to receive evidence on alleged irregularities. Applied here, the petitions alleging low turnout despite actual voting warranted summary denial despite the general rule requiring notice and summary hearing.
• Will of the majority; plurality suffices — There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained; if determinable, it must be respected, since no provision requires a majority of registered voters to cast votes and all that is required is election by plurality of valid votes. Applied here, even votes cast by less than 25% of the electorate must be respected, there being a prima facie showing of election by plurality of a valid constituency.
• Election irregularities proper to election contest — Terrorism, fraud and other irregularities may not as a rule be invoked to declare a failure of election and disenfranchise innocent voters through misdeeds of a few, but are better ventilated in an election contest. Applied here, claims of terrorism and unlawful clustering did not justify disenfranchisement via failure of election.
• Petition to annul election; effect of protest and proclamation — A petition to annul an election is not a pre-proclamation controversy, so proclamation and assumption of office do not bar its prosecution; and where an election protest is filed only ex abundante ad cautela with express reservation of a pending certiorari petition, jurisdiction over the latter is retained. Applied here, the August 10, 1992 protest did not abandon the August 3, 1992 certiorari petition.

• "Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the election nevertheless results in failure to elect; and, second, the votes not cast would affect the result of the election." — States the controlling two-requisite test for failure of election under Sec. 2, Rule 26 and Sec. 6, B.P. Blg. 881.
• "The verified petition must still show on its face that the conditions to declare a failure to elect are present. In the absence thereof, the petition must be denied outright." — Defines when COMELEC may deny without the notice and summary hearing otherwise required.
• "These irregularities may not as a rule be invoked to declare a failure of election and to disenfranchise the electorate through the misdeeds of a relative few." — Limits invocation of terrorism and irregularities to election contests rather than failure-of-election petitions.
• "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." — Articulates the substantive standard for failure of election and respect for ascertainable results.
• "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." — States why low turnout alone, even below 25%, does not invalidate results.

• Sardea vs. Commission on Elections, G.R. No. 106164, 17 August 1993 — Followed as authority for the two concurring conditions to justify calling a special election for failure of election.
• Anni vs. Izquierdo, No. L-35918, 28 June 1974, 57 SCRA 692 — Followed to hold that where actual voting and election by registered voters took place, results cannot be disregarded and excluded.
• Ututalum vs. Commission on Elections, G.R. Nos. 84843-44, 22 January 1990, 181 SCRA 335 — Followed to hold that terrorism and irregularities are better ventilated in an election contest and not to disenfranchise through failure of election.
• Antonio, Jr. vs. Commission on Elections, No. L-31604, 17 April 1970, 32 SCRA 319 — Followed to hold that only plurality of valid votes, not majority turnout, is required to elect.
• Olfato vs. Commission on Elections, G.R. No. 52749, 31 March 1981, 103 SCRA 741 — Followed to retain jurisdiction over annulment petition despite subsequently filed election protest ex abundante ad cautela.
• Jardiel vs. Commission on Elections, G.R. No. 58575, 21 September 1983, 124 SCRA 650 — Followed to hold that a petition to annul an election is not a pre-proclamation controversy barred by proclamation and assumption of office.

• Sec. 2, Rule 26, COMELEC Rules of Procedure, lifted from Sec. 6, B.P. Blg. 881 (Omnibus Election Code) — Provides that on account of force majeure, violence, terrorism, fraud or analogous causes preventing holding, causing suspension, or resulting in failure to elect, and affecting the result, COMELEC shall on verified petition and after notice and hearing call a special election; applied to require concurrence of non-voting/failure to elect and effect on result.
• Sec. 4, Rule 27, COMELEC Rules of Procedure — Requires within twenty-four hours from filing of verified petition to declare failure to elect, service of notice of hearing through fastest means; cited to address petitioner's due process claim, but held not to mandate hearing where petition is facially insufficient.
• Sec. 6, Rule 27, COMELEC Rules of Procedure — Requires summary nature of hearing; similarly cited and held subordinate to facial sufficiency requirement.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Melo, Quiason, Puno, Vitug and Kapunan, JJ., concur. Nocon, J., is on leave.