EN BANC

[G.R. No. 149803. January 31, 2002.] DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, SR., IBRAHIM B. BIRUAR, ALONTO B. DAUDIE, MICHAEL B. DIRANGAREN, ASNAWIS S. LIMBONA, RUSSMAN Q. SINSUAT, ZALNUDIN M. ABUTAZIL, DATUWATA U. ADZIS, BORGIVA T. DATUMANONG, 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. Soo Gutierrez & Lee, Pete Quirino-Quadra and Romulo B. Makalintal for petitioners. Froilan M. Bacungan & Associates for Datu Ali B. Sangki. The Solicitor General for public respondent. De Lima-Bohol & Meez Law Offices for private respondents. SYNOPSIS Petitioners and respondents were candidates for the provincial elective positions in the province of Maguindanao in the May 14, 2001 election. Petitioner Ampatuan and respondent Candao vied for the gubernatorial position. When petitioners emerged as the winning candidates, respondents filed a petition with the COMELEC for the annulment of election returns and/or declaration of failure of elections in several municipalities in Maguindanao for massive fraud and terrorism. The COMELEC initially suspended proclamation but eventually lifted the same. Petitioners were then proclaimed winners and assumed their offices. In the meantime, the COMELEC ordered the random technical examination of several precincts and issued an order outlining the procedure therefor. Petitioners filed the present recourse claiming that by virtue of their proclamation the proper remedy available to respondents was not a petition for declaration of failure of elections but an election protest.

The Court ruled that the proclamation of a candidate does not deprive the COMELEC the authority to annul canvass and illegal proclamation. 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. SYLLABUS 1.POLITICAL LAW; ELECTIONS; COMMISSION ON ELECTIONS; DUTY-BOUND TO INVESTIGATE ALLEGATIONS OF FRAUD, TERRORISM, VIOLENCE AND OTHER ANALOGOUS CAUSES. In Loong v. Commission on Elections, (326 Phil. 790, 814 [1996]). We ruled that "While, however, the Comelec is restricted, in preproclamation 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." 2.ID.; ID.; ID.; ID.; CASE AT BAR. 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. 3.ID.; ID.; ID.; PROCLAMATION OF CANDIDATE DOES NOT DEPRIVE COMMISSION OF AUTHORITY TO ANNUL CANVASS AND ILLEGAL PROCLAMATION. The fact that a candidate proclaimed has assumed office does not deprive the Comelec of its authority to annul any canvass and illegal proclamation. 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. 4.ID.; ELECTIONS; PROCLAMATION; MAY BE CHALLENGED EVEN IF CANDIDATE HAS ASSUMED OFFICE. 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. 5.ID.; ID.; FAILURE OF ELECTION; CONDITIONS. Elucidating on the concept of failure of election, we held that: ". . . 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." MELO, J., dissenting opinion: 1.POLITICAL LAW; ELECTIONS; COMMISSION ON ELECTIONS; FUNCTIONS. The traditional function of COMELEC since its creation in 1940 has been supervisory and administrative in nature. As an administrative body, COMELEC takes all the necessary measures to promote free, orderly, and honest elections. It has exclusive charge over the enforcement and administration of all laws and regulations relative to the conduct of elections (Section 2, Art. X, the 1935 Constitution, as amended.) It supervises the election machinery and decides questions involving the performance by election officers of their official functions. The authority given to COMELEC to declare a failure of elections and to call for the holding and continuation of the failed election falls under its administrative function. The Court had given a wide latitude to the exercise of this jurisdiction as COMELEC enforces the laws relative to the conduct of elections. In 1973, the revised Constitution added the judicial function of adjudicating certain election contests to COMELEC jurisdiction (Sec. 2, Art. XII-C of the 1973 Constitution). The procedures followed in a judicial contest are markedly different from those used by COMELEC in its enforcement and administrative machinery. The two functions cannot be mixed up in one indiscriminate proceeding. The administrative function should not supersede or encroach on the exercise of judicial powers over election contests.
SIaHDA

2.ID.; ID.; ELECTION CONTEST; ISSUE. In election contests, COMELEC is no longer concerned with the enforcement of the laws or the conduct of elections. Exercising its judicial functions, COMELEC ascertains who between the contending candidates actually received the majority or plurality of the legitimate or valid ballots (Gardiner vs. Romulo, 26 Phil. 521 [1914]). Under the present Constitution, COMELEC exercises original jurisdiction over all contests, relating to the election, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over election contests involving elective municipal and barangay officials (Sec. 2, Art. IV-C of the 1987 Constitution). The question asked in election protests is who are the real choices of the people (De Mesa vs. Mencias, (18 SCRA 933 [1966]; Garcia vs. Court of Appeals (36 SCRA 582 [1970]). Thus, allegations of fraud and irregularities in the casting and

counting of ballots and canvass of returns are examined with the end in view of ascertaining who among the contestants is the legitimate winning candidate and not for the holding or continuation of failed or suspended elections. 3.ID.; ID.; FAILURE OF ELECTIONS; INSTANCES. In Sison vs. COMELEC (334 SCRA 170 [1999]), we ruled that under the pertinent provisions of the Omnibus Election Code, there are only three instances where a failure of elections may be declared, namely: (a) The election in any polling place has not been held on the date fixed, on account of force majeure, violence, terrorism, fraud, or other analogous causes; or (b) The election in any polling place had not been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous cause; or (c) After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous causes. 4.ID.; ID.; ID.; ELECTIONS IN CASE AT BAR, ACTUALLY CONDUCTED. Elections were actually held on May 14, 2001. There was no suspension of voting in any polling place before the hour fixed for the closing of the voting. The records do not show any failure to elect based on events after the voting and during the preparation, transmission, and canvass of the returns. 5.ID.; ID.; ID.; "FAILURE TO ELECT", CONSTRUED. In Borja vs. COMELEC (260 SCRA 604 [1996]), we stated that the phrase "failure to elect" must be literally interpreted to mean that nobody emerged as a winner.

DECISION

PARDO, J :
p

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 order 1 to nullify and set aside two (2) orders dated July 26, 2001 2 and August 28, 2001 3 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.

Petitioners 4 and respondents 5 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 elections 6 in several municipalities 7 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 order 17 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 conducted 20 would defeat the summary nature of a petition for declaration of failure of elections. On October 5, 2001, petitioners filed a motion 21 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 . . ., 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:
". . . 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 . . . ." 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." . . . "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:
"4.1.The 'elections' in at least eight (8) other municipalities . . . 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 no voting 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:

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. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, Ynares-Santiago, De Leon, Jr. and Carpio, JJ., concur. Melo, J., please see dissenting opinion. Sandoval-Gutierrez, J., I join Justice Melo in his dissent.