ABAYON V COMELEC

Facts:
 Harlin Abayon and respondent Raul Daza were candidates for the Office of Governor of the
Province of Nothern Samar during the 14 May 2007 elections.
 Abayon filed a pre-proclamation protest before the Provincial Board of Canvassers (PBoC) of
Northern Samar, docketed as SPC No. 07-037, entitled, "IN THE MATTER OF THE PETITION TO
EXCLUDE THE CERTIFICATE[S] OF CANVASS (COC) OF THE MUNICIPALITIES OF CAPUL, ROSARIO
AND BOBON—ALL IN THE PROVINCE OF NORTHERN SAMAR WHICH WERE PREPARED UNDER
DURESS, THREATS AND INTIMIDATION."
 On 20 May 2007, Daza was proclaimed as the winning candidate having garnered a total of
101,819 votes against Abayon’s 98,351 votes, winning by a margin of 3,468 votes.
 Abayon also filed with the COMELEC these petitions: (1) "IN THE MATTER OF PETITION TO
DECLARE THE PROCLAMATION OF PRIVATE RESPONDENT [Daza] AS WINNING CANDIDATE FOR
THE POSITION OF GOVERNOR OF NORTHERN SAMAR NULL AND VOID," docketed as SPC No. 07-
070, and on 29 June 2007, Abayon filed with the COMELEC a Petition of Protest, docketed as EPC
No. 2007-62, contesting the election and proclamation of Daza as Governor of Northern Samar

COMELEC: dismissed the election protest

 in EPC No. 2007-62 COMELEC First Division issued its Order13 dismissing Abayon’s election
protest for having been filed out of time. Under Section 250 of the Omnibus Election Code,14 an
election protest should be filed within 10 days from the date of the proclamation of the results
of the election. Since Daza was proclaimed on 20 May 2007, Abayon had only until 30 May 2007
to file his election protest. However, he filed his election protest only on 29 June 2007
 in order for a petition for annulment of proclamation to suspend the period for filing of election
protest, it should be based on a valid pre-proclamation issue. In applying this ruling, it decreed
that the pendency of SPC No. 07-070, Abayon’s petition for annulment of Daza’s proclamation,
did not toll the running of the ten-day period for filing an election protest. SPC No. 07-070 was
based on SPC No. 07-037, Abayon’s earlier petition for the exclusion from canvass of the COCs
from the Municipalities of Capul, Rosario and Bobon, Norther Samar, since they were prepared
under duress, threats, and coercion or intimidation, grounds which do not involve proper pre-
proclamation issues.
 The COMELEC en banc, upon motion for consideration of Abayon, denied the same

Abayon sought remedy from this Court via the present Petition for Certiorari and Prohibition under
Rule 65 of the Revised Rules of Court

Issues:
1. whether the mere filing of a pre-proclamation case, regardless of the issues raised therein,
suspends the ten-day period for the filing of an election protest; and (NO)
2. if the answer to the first issue is in the negative, whether the election protest which is untimely
filed may still be considered by the COMELEC (NO)

Held:
 Section 250 of the Omnibus Election Code fixes the period within which to file an election
contest for provincial offices at ten days after the proclamation of the election results, to wit:
o Section 250. Election contests for Batasang Pambansa, regional, provincial and city offices. - A
sworn petition contesting the election of any Member of the Batasang Pambansa or any regional,
provincial and city official shall be filed with the Commission by any candidate who has duly filed
 a certificate of candidacy and has been voted for the same office, within ten days after the
proclamation of the results of the election.
 However, this ten-day period may be suspended, as Section 248 of the Omnibus Election Law
provides:
o Section 248. Effect of filing petition to annul or to suspend the proclamation.-- The filing with the
Commission of a petition to annul or to suspend the proclamation of any candidate shall suspend
the running of the period within which to file an election protest or quo warranto proceedings.
 The "petition to annul or to suspend the proclamation," which Section 248 refers to, and which
suspends the running of the period within which to file the election protest or quo warranto
proceedings, must be a pre-proclamation controversy. The Court, thus, decreed in the same
case that a petition for the declaration of failure of election was not a pre-proclamation
controversy and, therefore, did not suspend the running of the reglementary period within
which to file an election protest or quo warranto proceedings.
 In this case, it is worthy to reiterate that on 20 May 2007, Daza was already proclaimed the
winning candidate for the Office of Governor of the Province of Nothern Samar in the 14 May
2007 elections. Abayon had until 30 May 2007 to file his election protest. Yet, he filed EPC No.
2007-62, his Petition of Protest only on 29 June 2007, or almost 40 days after Daza’s
proclamation.
 Jurisprudence makes it clear that the mere filing of a petition denominated as a pre-
proclamation case or one seeking the annulment of a proclamation will not suspend the ten-day
period for filing an election protest. It is required that the issues raised in such a petition be
restricted to those that may be properly included therein.
 Not all actions seeking the annulment of proclamation suspend the running of the period for
filing an election protest or a petition for quo warranto. For it is not the relief prayed for which
distinguishes actions under [Section] 248 from an election protest or quo warranto proceedings,
but the grounds on which they are based.
 The grounds that must support a pre-proclamation controversy are limited by the Omnibus
Election Code to the following:
o Section 243. Issues that may be raised in pre-proclamation controversy.—The following shall be
proper issues that may be raised in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material defects, appear to be
tampered with or falsified, or contain discrepancies in the same returns or in other authentic
copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;
(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they
are obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were canvassed, the
results of which materially affected the standing of the aggrieved candidate or candidates.
 The enumeration is restrictive and exclusive. Thus, in the absence of any clear showing or proof
that the election returns canvassed are incomplete or contain material defects; appear to have
been tampered with, falsified or prepared under duress; and/or contain discrepancies in the
votes credited to any candidate, which would affect the result of the election, a petition cannot
be properly considered as a pre-proclamation controversy.
 The purpose of a pre-proclamation controversy is to ascertain the winner or winners in the
election on the basis of the election returns duly authenticated by the board of inspectors and
admitted by the board of canvassers. A pre-proclamation controversy is summary in nature. It is
the policy of the election law that pre-proclamation controversies be summarily decided,
consistent with the law’s desire that the canvass and proclamation be delayed as little as
possible. There is no room for the presentation of evidence aliunde, the inspection of
 voluminous documents, and for meticulous technical examination. That is why such questions as
those involving the appreciation of votes and the conduct of the campaign and balloting, which
require more deliberate and necessarily longer consideration, are left for examination in the
corresponding election protest.
 The petition for annulment of proclamation was based on an unresolved petition for exclusion
from the canvass of three certificates of canvass on the ground that they were allegedly
prepared under duress, threats, coercion or intimidation. None of the aforementioned
circumstances fall under the enumeration of issues that may be raised in a pre-proclamation
controversy. Not any of these circumstances involves defects or irregularities apparent from the
physical examination of the election returns. The alleged abduction of a voter, the killing of a
political leader, the threats which prevented the holding of the campaign sorties, and the
intimidation of voters, are acts of terrorism which are properly the subject of an election
protest, but not of a pre-proclamation controversy.
 Since SPC No. 07-037 did not qualify as a pre-proclamation controversy, it could not have
suspended the ten-day statutory period for the filing of an election protest.
 Bereft of any legal basis, SPC No. 07-070, Abayon’s petition to annul the proclamation of Daza,
likewise, could not have suspended the period for the filing of an election protest.
 Section 20. Procedure in Disposition of Contested Election Returns:
(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the
Commission after the latter has ruled on the object brought to it on appeal by the losing party.
Any proclamation made in violation hereof shall be void ab initio, unless the contested returns
will not adversely affect the results of the election.
 To begin with, as this Court already ruled herein, SPC No. 07-037 was not a pre-proclamation
case that should defer the proclamation of Daza during its pendency.
 More importantly, the procedure under Section 20 of Republic Act No. 7166 applies only to valid
pre-proclamation contests. The first part of Section 20, particularly paragraph (a), actually states
that:
 Section 20. Procedure in Disposition of Contested Election Returns.
o a) Any candidate, political party or coalition of political parties contesting the inclusion or
exclusion in the canvass of any election returns on any of the grounds authorized under Article
XX or Sections 234, 235 and 236 of Article XIX of the Omnibus Election Code shall submit their
oral objection to the chairman of the board of canvassers at the time the questioned return is
presented for inclusion in the canvass. Such objection shall be recorded in the minutes of the
canvass.
 SPC No. 07-070 sought the annulment of Daza’s proclamation and was necessarily filed after the
said proclamation. Clearly it is not a pre-proclamation case. Under Section 16 of Republic Act
No. 7166, pre-proclamation cases which are unresolved at the beginning of the term of the
winning candidate are automatically terminated. The COMELEC is not obligated to resolve each
and every pre-proclamation case. Since SPC No. 07-070 is apparently not a pre-proclamation
contest and it is based on a legal argument which contradicts the law, this Court cannot possibly
accord it the effect of suspending the statutory period for the filing of an election protest.
 To reiterate, the circumstances pointed out by Abayon in SPC No. 07-037 are proper grounds for
an election protest, not a pre-proclamation controversy. In fact, had Abayon timely filed an
election protest, bearing the same allegations and raising identical issues, it would have been
given due course. Instead, Abayon repeatedly insisted on pursuing remedies which were not
available to him given, the circumstances alleged in his petitions.
 Section 248 of the Omnibus Election Code, allowing a pre-proclamation case to suspend the
period for filing the election protest, was clearly intended to afford the protestant the
 opportunity to avail himself of a remedy to its fullest extent; in other words, to have his pre-
proclamation case resolved, without the pressure of having to abandon it in order to avail
himself of other remedies. It protects the right of the protestant to still file later on an election
protest on grounds that he could not raise in, or only became apparent after his filing of, a pre-
proclamation case. Section 248 is not to be used as a justification for the irresponsible filing of
petitions, which on their face are contrary to the provisions of election laws and regulations, and
which only serve to delay the filing of proper remedies and clog the dockets of the COMELEC
and the courts.
 The processes of the adjudication of election disputes should not be abused. By their very
nature and given the public interest involved in the determination of the results of an election,
the controversies arising from the canvass must be resolved speedily; otherwise, the will of the
electorate would be frustrated. And the delay brought about by the means resorted to by
petitioner is precisely the very evil sought to be prevented by election laws and the relevant
jurisprudence.
 It bears enucleation that the rule prescribing the ten-day period for the filing of an election
protest is mandatory and jurisdictional; and the filing of an election protest beyond the period
deprives the court of jurisdiction over the protest. Violation of this rule should not be taken
lightly, nor should it be brushed aside as a mere procedural lapse that can be overlooked. This is
not a mere technicality but an essential requirement, the non-compliance with which would
oust the court of jurisdiction over the case.
 While there is merit in allowing an election protest to proceed in order to ascertain the
allegations of massive fraud and irregularities which tend to defeat the electorate’s will, one
must also keep sight of jurisdictional requirements such as the period within which to file the
protest. Otherwise, election disputes would drag on, and the political stability which the election
rules seek to preserve will be vulnerable to challenges even beyond a reasonable period of time.
In this case, Abayon failed to give this Court a justification for the delay in filing his election
protest, apart from his reliance on the argument that the manifestly invalid pre-proclamation
case he filed suspended the period for the filing of his election protest.
 In a special civil action for certiorari, the burden is on the part of the petitioner to prove not
merely reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the public respondent issuing the impugned order. Grave abuse of discretion
means a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. In
the present case, the COMELEC did not gravely abuse its discretion. Rather, it decided the
matter in accordance with the prevailing laws and jurisprudence. The conclusion of the
COMELEC on a matter decided within its competence is entitled to utmost respect.