Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 149803 January 31, 2002

DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, SR., IBRAHIM B. BIRUAR, ALONTO B.

DAUDIE, MICHAEKL B. DIRANGAREN, ASNAWIS S. LIMBONA, RUSSMAN Q. SINSUAT,
ZALNUDIN M. ABUTAZIL, DATUWATA U. ADZIS, BORGIVA T. DATU-MANONG, FREDDIE G.
MANGUDADATU and ABBAS A. PENDATUN, JR., petitioners,
vs.
COMMISSION ON ELECTIONS, DATU ZACARIA A. CANDAO, DATU NORODIN M. MATALAM,
KHARIS M. BARAGUIR, PAGRAS D. BIRUAR, CAHAR PENDAT IBAY, PATULA O. TIOLO,
MARHOMSAL K. LAUBAN, MENTANG T. KABAGANI, ELIZABETH C. MASUKAT, GAPOR A.
RAJAMUDA, SAID S. SALIK and LINTATO G. SANDIGAN, respondents.

DECISION

PARDO, J.:

The case is a petition for certiorari and prohibition under Rule 64 in relation to Rule 65 of the
Revised Rules of Court with preliminary injunction or temporary restraining order1 to nullify and set
aside two (2) orders dated July 26, 20012 and August 28, 20013 of the Commission on Elections
(COMELEC), ordering a random technical examination of pertinent election paraphernalia and other
documents in several municipalities in the province of Maguindanao to determine a failure of
elections.

Petitioners4 and respondents5 were candidates for the provincial elective positions in the province of
Maguindanao in the May 14, 2001 election. Petitioner Ampatuan and respondent Candao contended
for the position of governor. The slate of Ampatuan emerged as winners as per election returns.

On May 23, 2001, respondents filed a petition with the Comelec for the annulment of election results
and/or declaration of failure of elections6 in several municipalities7 in the province of Maguindanao.
They claimed that the elections "were completely sham and farcical." The ballots were filled-up en
masse by a few persons the night before election day, and in some precincts, the ballot boxes,
official ballots and other election paraphernalia were not delivered at all.8

On May 25, 2001, the Comelec issued an order suspending the proclamation of the winning
candidates for congressman of the second district, governor, vice-governor and board members of
Maguindanao.9

On May 30, 2001, petitioners filed with the Comelec a motion to lift the suspension of
proclamation.10 On June 14, 2001, the Comelec issued an order lifting the suspension of
proclamation of the winning candidates for governor, vice-governor and board members of the first
and second districts.11 Consequently, the Provincial Board of Canvassers proclaimed petitioners
winners.12

On June 16, 2001, respondents filed with the Supreme Court a petition to set aside the Comelec
order dated June 14, 2001, and preliminary injunction to suspend the effects of the proclamation of
the petitioners.13 Meantime, petitioners assumed their respective offices on June 30, 2001. On July
17, 2001, the Court resolved to deny respondents’ petition.14

Petitioners’ assumption into office notwithstanding, on July 26, 2001, the Comelec ordered the
consolidation of respondents’ petition for declaration of failure of elections with SPA Nos. 01-244,
01-332, 01-360, 01-388 and 01-390.15 The COMELEC further ordered a random technical
examination on four to seven precincts per municipality on the thumb-marks and signatures of the
voters who voted and affixed in their voter’s registration records, and forthwith directed the
production of relevant election documents in these municipalities.16

On August 28, 2001, the Comelec issued another order17 directing the continuation of the hearing
and disposition of the consolidated SPAs on the failure of elections and other incidents related
thereto. It likewise ordered the continuation of the technical examination of election documents as
authorized in the July 26, 2001 order. On September 27, 2001, the Comelec issued an order
outlining the procedure to be followed in the technical examination.18

On September 26, 2001, petitioners filed the present petition.19 They claimed that by virtue of their
proclamation pursuant to the June 14, 2001 order issued by the Comelec, the proper remedy
available to respondents was not a petition for declaration of failure of elections but an election
protest. The former is heard summarily while the latter involves a full-blown trial. Petitioners argued
that the manner by which the technical examination is to be conducted20 would defeat the summary
nature of a petition for declaration of failure of elections.

On October 5, 2001, petitioners filed a motion21 reiterating their request for a temporary restraining
order to enjoin the implementation of the July 26, 2001 and August 28, 2001 Comelec orders.

On October 22, 2001, the Comelec issued an order suspending the implementation of the two (2)
assailed orders, the pertinent portion of which reads as follows:

"The Commission, in view of the pendency of G. R. No. 149803 xxx, requiring it to comment within
ten (10) days from notice, hereby suspends implementation of its orders of July 26, 2001 and August
28, 2001 in deference to the resolution of said court."22

However, on November 13, 2001, the Comelec issued another order lifting the suspension.23

On November 20, 2001, we issued a temporary restraining order, to wit:

"xxx the Court Resolved to (a) ISSUE the TEMPORARY RESTRAINING ORDER prayed for,
effective immediately and continuing until further orders from this Court, ordering the respondent
Commission on Elections to CEASE and DESIST from ordering the lifting of the suspended
implementation orders dated 26 July 2001 and 28 August 2001 in SPA No. 01-323 xxx."24

The main issue to be resolved is whether the Commission on Elections was divested of its
jurisdiction to hear and decide respondents’ petition for declaration of failure of elections after
petitioners had been proclaimed.

We deny the petition.

Petitioners submit that by virtue of their proclamation as winners, the only remedy left for private
respondents is to file an election protest, in which case, original jurisdiction lies with the regular
courts. Petitioners cited several rulings that an election protest is the proper remedy for a losing
candidate after the proclamation of the winning candidate.25

However, the authorities petitioners relied upon involved pre-proclamation controversies. In Loong v.
Commission on Elections,26 we ruled that "a pre-proclamation controversy is not the same as an
action for annulment of election results, or failure of elections." These two remedies were more
specifically distinguished in this wise:

"While, however, the Comelec is restricted, in pre-proclamation cases, to an examination of the

election returns on their face and is without jurisdiction to go beyond or behind them and investigate
election irregularities, the Comelec is duty bound to investigate allegations of fraud, terrorism,
violence, and other analogous causes in actions for annulment of election results or for declaration
of failure of elections, as the Omnibus Election Code denominates the same. Thus, the Comelec, in
the case of actions for annulment of election results or declaration of failure of elections, may
conduct technical examination of election documents and compare and analyze voters’
signatures and thumbprints in order to determine whether or not the elections had indeed been
free, honest and clean."27

The fact that a candidate proclaimed has assumed office does not deprive the Comelec of its
authority to annul any canvass and illegal proclamation.28 In the case at bar, we cannot assume that
petitioners’ proclamation and assumption into office on June 30, 2001, was legal precisely because
the conduct by which the elections were held was put in issue by respondents in their petition for
annulment of election results and/or declaration of failure of elections.

Respondents’ allegation of massive fraud and terrorism that attended the May 14, 2001 election in
the affected municipalities cannot be taken lightly as to warrant the dismissal of their petition by the
Comelec on the simple pretext that petitioners had been proclaimed winners. We are not unmindful
of the fact that "a pattern of conduct observed in past elections has been the pernicious ‘grab-the-
proclamation-prolong-the-protest’ slogan of some candidates or parties" such that even if the
protestant wins, it becomes "a mere pyrrhic victory, i.e., a vindication when the term of office is about
to expire or has expired." xxx "We have but to reiterate the oft-cited rule that the validity of a
proclamation may be challenged even after the irregularly proclaimed candidate has assumed
office."29

Petitioners likewise rely on the case of Typoco, Jr. v. Commission on Elections.30 This Court held
that Comelec committed no grave abuse of discretion in dismissing a petition for declaration of
failure of elections. However, we made a pronouncement that the dismissal was proper since the
allegations in the petition did not justify a declaration of failure of elections. "Typoco’s relief was for
Comelec to order a recount of the votes cast, on account of the falsified election returns, which
is properly the subject of an election contest."31

Respondents’ petition for declaration of failure of elections, from which the present case arose,
exhaustively alleged massive fraud and terrorism that, if proven, could warrant a declaration of
failure of elections. Thus:
1âw phi 1

"4.1. The ‘elections’ in at least eight (8) other municipalities xxx were completely sham and farcical.
There was a total failure of elections in these municipalities, in that in most of these municipalities,
no actual voting was done by the real, legitimate voters on election day itself but ‘voting’ was made
only by few persons who prepared in advance, and en masse, the ballots the day or the night before
election and, in many precincts, there was completely novoting because of the non-delivery of ballot
boxes, official ballots and other election paraphernalia; and in certain municipalities, while some
semblance of ‘voting’ was conducted on election day, there was widespread fraudulent counting
and/or counting under very irregular circumstances and/or tampering and manufacture of election
returns which completely bastardized the sovereign will of the people. These illegal and fraudulent
acts of desecration of the electoral process were perpetrated to favor and benefit respondents.
These acts were, by and large, committed with the aid and/or direct participation of military elements
who were deployed to harass, intimidate or coerce voters and the supporters or constituents of
herein petitioners, principally, of re-electionist Governor Datu Zacaria Candao. Military units and
personnel visibly, openly and flagrantly violated election laws and regulations by escorting people or
elements engaged in the illegal, advanced preparation of ballots and election returns and, at times,
manning the polling places or precincts themselves and/or staying within the prohibited radius. Ballot
boxes and other election paraphernalia were brought not to the precincts or voting centers
concerned but somewhere else where massive manufacture of ballots and election documents were
perpetrated."32

The Comelec en banc has the authority to annul election results and/or declare a failure of
elections.33 Section 6 of the Omnibus Election Code further provides that:

"Section 6. Failure of election.- If, on account of force majeure, violence, terrorism, fraud, or other
analogous causes the election in any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the voting and during
the preparation and the transmission of the election returns or in the custody or canvass thereof,
such election results in a failure to elect, and in any of such cases the failure or suspension of
election would affect the result of the election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and hearing, call for the holding or continuation
of the election not held, suspended or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or suspension of the election of failure to
elect."

Elucidating on the concept of failure of election, we held that:

"xxx 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 precincts concerned on the date fixed
by law or, even if there was voting, the election nevertheless resulted in a failure to elect; and
second, the votes cast would affect the result of the election. In Loong vs. Commission on
Elections, this Court added that the cause of such failure of election should have been any of the
following: force majeure, violence, terrorism, fraud or other analogous cases."34

In another case, we ruled that "while it may be true that election did take place, the irregularities that
marred the counting of votes and the canvassing of the election returns resulted in a failure to
elect."35

In the case at bar, the Comelec is duty-bound to conduct an investigation as to the veracity of
respondents’ allegations of massive fraud and terrorism that attended the conduct of the May 14,
2001 election. It is well to stress that the Comelec has started conducting the technical examination
on November 16, 2001. However, by an urgent motion for a temporary restraining order filed by
petitioners, in virtue of which we issued a temporary restraining order on November 20, 2001, the
technical examination was held in abeyance until the present. In order not to frustrate the ends of
justice, we lift the temporary restraining order and allow the technical examination to proceed with
deliberate dispatch.

WHEREFORE, the petition is hereby DISMISSED. The temporary restraining order issued on
November 20, 2001 is DISSOLVED. The Commission on Elections is directed to proceed with the
hearing of the consolidated petitions and the technical examination as outlined in its September 27,
2001 order with deliberate dispatch. No costs.

SO ORDERED.