EN BANC

[G.R. No. 150540. October 28, 2003]

DIMALUB P. NAMIL, ABDULNASSER TIMAN, TERESITA G. AKOB,

MALIGA AMILUDIN and EPAS GUIAMEL, petitioners,
vs. COMMISSION ON ELECTIONS, public respondent.
JOENIME B. KAPINA, MONIB B. WALINGWALING, MAULANA G.
KARNAIN, ABDULGAPHAR M. MUSTAPHA, ABDULRAKMAN
TALIKOP and WILSON SABIWANG, private respondents.

DECISION
CALLEJO, SR., J.:

This is a special civil action for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, to set aside the November 6, 2001 Resolution No. 4615,
 promulgated by the Commission on Elections (COMELEC) en banc  installing the
[1] [2]

private respondents as members of the Sangguniang Bayan of Palimbang, Sultan

Kudarat, although the petitioners had already taken their respective oaths and assumed
offices in the same elective positions.
The antecedents are as follows:
On May 14, 2001, the election for the members of the Sangguniang Bayan was held
in Palimbang, Sultan Kudarat.
On May 20, 2001, the Municipal Board of Canvassers of Palimbang issued
Certificate of Canvass of Votes and Proclamation (COCVP) No. 8031108  which [3]

contained, inter alia, the petitioners and the Sangguniang Bayan winning candidates:

1. NOREN B. APIL
2. MALOD B. MOSADI
3. DIMALUB P. NAMIL
4. ABDULNASSER A. TIMAN
5. TERESITA G. AKOB
6. MABANING P. SAMAMA
7. EPAS T. GUIAMEL
8. MALIGA M. AMILUDIN

The above-named candidates took their oath, and assumed their offices on June
30, 2001  as members of the Sangguniang Bayan of Palimbang.
[4]
 The next day, May 21, 2001, the Municipal Board of Canvassers of Palimbang
issued COCVP No. 8031109 which listed the private respondents as winners, namely:

1. JOENIME B. KAPINA
2. MONIB B. WALINGWALING
3. MAULANA G. KARNAIN
4. ABDULGAPHAR M. MUSATAPHA
5. MALOD B. MOSADI
6. ABDULRAKMAN A. TALIKOP
7. WILSON K. SABIWANG
8. MABANING P. SAMAMA

Thereafter, private respondent Joenime B. Kapina wrote the COMELEC requesting

that she and the others who were proclaimed as winners on May 21, 2001 be
recognized as the winning candidates and the new members of the Sangguniang
Bayan of Palimbang, Sultan Kudarat. Appended to said letter was a certification issued
by Regional Election Director Clarita N. Callar, Region XII, Cotabato City, that the
private respondents named in the COCVP No. 8031109, issued on May 21, 2001, were
duly proclaimed as the winning candidates for the said municipality. When apprised of
the said letter, the Commissioner-in-Charge for Region XII, Mehol K. Sadain, conducted
an investigation on the matter of having two (2) sets of winning candidates as members
of the Sangguniang Bayan for Palimbang. He issued Memorandum No. 2001-09-005
requiring the Law Department, the Regional Election Registrar and the Provincial
Election Supervisor to submit their respective reports/comments on the letter. The said
officers submitted their respective memorandum, thus:
1. Memo dated September 11, 2001 of Atty. Jose Balbuena, Director Law Department,
to the effect that, our Comelec field officials in Region XII who directly
participated in the canvassing who were named in (Memo No. 2001-09-001)
could best provide the needed explanation and information on the double
proclamation of Sangguniang Bayan winners in Palimbang, Sultan Kudarat.
2. Memo dated September 6, 2001 of Atty. Clarita Callar, Regional Election Director,
Region XII, to the effect that the Election Assistant Amy Laguda who issued the
certification on the proclamation based on Certificate No. 8031109 dated May
21, 2001 verified the genuineness of her signature on the said certification, and
further said that at the time she issued the certification the PES had not yet
received a copy of Certificate No. 8031108 dated May 20, 2001. Further, Atty.
Callar referred to the verification of Ms. Celia Romero that per records of the
RSD, the names appearing as elected members of the Sangguniang Bayan for
the Municipality of Sultan Kudarat ... are those proclaimed in Certificate of
Canvass of Votes & Proclamation No. 8031109.Incidentally, Ms. Romero also
issued a certification that the serial numbers of the Certificates of Canvass of
Votes and Proclamation were 8031108 for Lambayong, SK and 8031109
for Palimbang, SK.
3. Memo filed on September 6, 2001 by Atty. Lintang H. Bedol, PES, Sultan Kudarat,
recommending that the parties should file the appropriate case/s before the
 Commission, instead of coursing their redress through the PES of Sultan
Kudarat or the RED of Region XII.
4. A confidential certification of EO Malic Sansarona dated September 12, 2001 to the
effect that the Certificate of Canvass of Votes and Proclamation ... No. 8031109
dated June 21, 2001 is [the] genuine and valid proclamation of elected Municipal
Officials of the Municipality of Palimbang, Sultan Kudarat, and that the other
proclamation [No. 8031108] is fictitious and falsified.
Acting on the said Memoranda, Commissioner Sadain submitted his
Recommendation  to the COMELEC, thus:
[5]

1. Finds that there was a VALID PROCLAMATION of the winning candidates for
positions of Members of the Sangguniang Bayan of Palimbang, Sultan Kudarat
as contained in Certificate of Canvass of Votes and Proclamation No. 8031109;
2. That there being a VALID PROCLAMATION, there is NO NEED for adjudication on
this matter; and therefore
3. Respectfully RECOMMENDS to the Commission En Banc, the adoption of the
following recommendation [Annex D] of Atty. Jose P. Balbuena, Dir., Law
Department and Atty. Gregorio T. Saraos, Attorney II, IPD, Law Department.

PREMISES CONSIDERED, the Law Department RECOMMENDS to issue an Order

for the immediate installation of the winning members of the Sangguniang Bayan [of
Palimbang, Sultan Kudarat], namely: JOENIME B. KAPINA, MONIB B.
WALINGWALING, MAULANA G. KARNAIN, ABDULGAPHAR M. MUSTAPHA,
MALOD B. MOSADI, ABDULRAKMAN A. TALIKOP, WILSON K. SABIWANG, AND
MABANING P. SAMAMA... and for said purpose, to direct the Brigade Commander,
60 1st Brigade Pulutana of General Santos City, Saranggani Province, to effect and
enforce the said Order and to submit his compliance within five (5) days from notice
hereof.

Acting on the recommendation of Commissioner Sadain, the public respondent

issued on November 6, 2001 the assailed Resolution No. 4615. The dispositive portion
reads:

WHEREFORE, in view of the foregoing, the Commission RESOLVED, as it hereby

RESOLVES, (1) that the proclamation of the winning candidates contained in
Certificate of Canvass of Votes and Proclamation No. 8031109 is a valid
proclamation; (2) to adopt the recommendation of the Law Department which is in
accordance with the result of the investigation conducted by the Commissioner-in-
Charge; and herein orders the immediate installation of JOENIME B. KAPINA,
MONIB B. WALINGWALING, MAULANA G. KARNAIN, ABDULGAPHAR M.
MUSTAPHA, MALOD B. MOSADI, ABDULRAKMAN A. TALIKOP, WILSON
K. SABIWANG, AND MABANING P. SAMAMA as the duly elected members of
the Sangguniang Bayan of Palimbang, Sultan Kudarat. [6]
 The petitioners contend that the public respondents Resolution No. 4615 is null and
void since it was issued without according them due notice and hearing, contrary to the
enshrined principle of due process. The public respondent thus committed a grave
abuse of discretion amounting to lack or excess of jurisdiction.
The petitioners allege that they were never accorded the chance to present their
side in connection with the investigation that was purportedly conducted by
Commissioner Sadain and on the memoranda/report of the public respondents
officers. The public respondent simply approved the recommendation of Commissioner
Sadain. The petitioners were kept in the dark, learned about the controversy only when
they were notified of the assailed resolution of the public respondent.
The public respondent, through the Office of the Solicitor General, as well as the
private respondents, asserts that the petitioners failed to file a motion for
reconsideration of the assailed decision before instituting this action with this Court;
hence, the petition is premature. It is pointed out that the public respondent has broad
powers to enforce all election laws, it has the power to control and supervise the
proceedings of the board of canvassers, and the power to suspend or annul
proclamation. When it learned about the two (2) sets of winning candidates as members
of Sangguniang Bayan of Palimbang, Sultan Kudarat, the public respondent required an
investigation to be conducted by one of the commissioners, who required the election
officers in the place concerned to submit their reports on the matter. After a study of the
various reports, it was ascertained that COCVP (C.E Form No. 25) No. 8031108 was
null and void, fictitious and falsified. The public respondent made a finding that the
genuine COCVP was that one bearing Serial No. 8031109, intended for
the Municipality of Palimbang, Sultan Kudarat. It was thus incumbent upon the public
respondent to order the immediate installation of the winning candidates on the basis of
the genuine COCVP to give effect to the will of the electorate, conformably to its
mandate under Section 242 of the Omnibus Election Code and the ruling of this Court
in Aguam vs. Commission on Elections. [7]

The public respondent further asserts that the twin requirement of notice and
hearing in annulment of proclamation is not applicable when the proclamation is null
and void, citing Utto vs. Commission on Elections. [8]

The petition is meritorious.

While it is true that the COMELEC is vested with a broad power to enforce all
election laws, the same is subject to the right of the parties to due process. In this case,
the petitioners had been proclaimed as the winning candidates and had assumed their
office. Since then, they had been exercising their rights and performing their duties as
members of the Sangguniang Bayan of Palimbang, Sultan Kudarat. Their proclamation
on May 20, 2001 enjoys the presumption of regularity and validity since no contest or
protest was even filed assailing the same.The petitioners cannot be removed from office
without due process of law. Due process in the proceedings before the public
respondent exercising its quasi-judicial functions, requires due notice and hearing,
among others. Thus, although the COMELEC possesses, in appropriate cases, the
power to annul or suspend the proclamation of any candidate, we also ruled in Farias
vs. Commission on Elections, Reyes vs. Commission on Elections and Gallardo vs.
Commission on Elections that the COMELEC is without power to partially or totally
annul a proclamation or suspend the effects of a proclamation without notice and
hearing.[9]

In this case, the public respondent nullified the proclamation of the petitioners and
ousted them from their office as members of the Sangguniang Bayan of Palimbang,
based solely on the recommendations of its law department and of Commissioner
Sadain, and on the memoranda of its officers. The petitioners were not accorded a
chance to be heard on the said recommendations and the memorandum of Regional
Election Director Clarita Callar, certification of Celia Romero, and certification of
Election Officer Malic Sansarona dated September 12, 2001 before it issued the
assailed resolution.
The conclusion of the public respondent that the basis of the petitioners
proclamation was a fictitious and falsified document was grounded, inter alia, on a
confidential certification of Election Officer Malic Sansarona dated September 12, 2001.
 However, it appears that a certification  was earlier issued by the same election
[10] [11]

officer on June 25, 2001, stating that the petitioners whose names were listed
as winning candidates as Sangguniang Bayan members in the COCVP (C.E. Form No.
25) No. 8031108, the very certificate declared by the public respondent in its Resolution
No. 4615 as fictitious and falsified document, won in the elections.
In the case of Caruncho III vs. Commission on Elections,  this Court has held that
[12]

due process in quasi-judicial proceedings before the COMELEC requires due notice
and hearing. The proclamation of a winning candidate cannot be annulled if he has not
been notified of any motion to set aside his proclamation. This Court also ruled
in Sandoval vs. Commission on Elections  that:
[13]

... Although the COMELEC is clothed with jurisdiction over the subject matter and
issue of SPC No. 98-143 and SPC No. 98-206, we find the exercise of its jurisdiction
tainted with illegality. We hold that its order to set aside the proclamation of petitioner
is invalid for having been rendered without due process of law. Procedural due
process demands prior notice and hearing. Then after the hearing, it is also necessary
that the tribunal show substantial evidence to support its ruling. In other words, due
process requires that a party be given an opportunity to adduce his evidence to support
his side of the case and that the evidence should be considered in the adjudication of
the case. The facts show that COMELEC set aside the proclamation of petitioner
without the benefit of prior notice and hearing and it rendered the questioned order
based solely on private respondents allegations. We held in Bince, Jr. vs. COMELEC:

Petitioner cannot be deprived of his office without due process of law. Although

public office is not property under Section 1 of the Bill of Rights of the Constitution,
and one cannot acquire a vested right to public office, it is, nevertheless, a protected
right. Due process in proceedings before the COMELEC, exercising its quasi-judicial
functions, requires due notice and hearing, among others. Thus, although the
COMELEC possesses, in appropriate cases, the power to annul or suspend the
proclamation of any candidate, We had ruled in Farinas vs. Commission on Elections,
Reyes vs. Commission on Elections and Gallardo vs. Commission on Elections that
the COMELEC is without power to partially or totally annul a proclamation or
suspend the effects of a proclamation without notice and hearing.

The public respondents reliance on the ruling of this Court in Utto vs. Commission
on Elections  is misplaced. The Court, in that case, held that the twin-requirement of
[14]

notice and hearing in an annulment of proclamation is not applicable because of the

illegality of petitioners proclamation.  The factual circumstances in the instant petition
[15]

are far different from those obtaining in Utto. In the Utto case, a notice of appeal was
filed questioning the ruling of the board of canvassers but, the latter proceeded in
proclaiming Utto as the winning candidate. This made the proclamation illegal. In the
present case, nobody questioned the petitioners proclamation.
We rule that the petition in this case was not prematurely filed. Generally, a motion
for reconsideration is a pre-requisite to the viability of a special civil action for
certiorari. However, there are exceptions to the rule. The aggrieved party is not obliged
to first file a motion for reconsideration of the assailed resolution before filing a petition
under Rule 65 of the Rules of Court, as amended where, as in this case, (1) the
question is purely legal, (2) judicial intervention is urgent; (3) its application may cause
great and irreparable damage; and (4) the controverted acts violate due process. [16]

The private respondents cannot invoke Section 242 of the Omnibus Election Code
to fortify their cause, because the said law specifically refers to pre-proclamation
controversies, thus:

Sec. 242. Commissions exclusive jurisdiction of all pre-proclamation

controversies. The Commission shall have exclusive jurisdiction of all pre-
proclamation controversies. It may motu proprio or upon written petition, and after
due notice and hearing, order the partial or total suspension of the proclamation of
any candidate-elect or annul partially or totally any proclamation, if one has been
made, as the evidence shall warrant in accordance with the succeeding section. [17]

Even the fact that the public respondent initiated the proceedings for the partial or
total annulment of an illegal proclamation would not dispense with the requirements of
notice and hearing. This was made clear in Sandoval vs. Commission on Elections: [18]

Citing Section 242 of the Omnibus Election Code, private respondent argues that the
COMELEC is authorized to annul an illegal proclamation even without notice and
hearing because the law states that it may motu proprio order a partial or total
suspension of the proclamation of any candidate-elect or annul partially or totally any
proclamation, if one has been made. ...

...
The phrase motu proprio does not refer to the annulment of proclamation but to the
manner of initiating the proceedings to annul a proclamation made by the board of
canvassers. The law provides two ways by which annulment proceedings may be
initiated. It may be at the own initiative of the COMELEC (motu proprio) or by
written petition. In either case, notice and hearing is required. This is clear from the
language of the law. [19]

IN THE LIGHT OF THE FOREGOING, the petition is GRANTED. The assailed

Resolution No. 4615 of the public respondent COMELEC en banc dated November 6,
2001, is hereby REVERSED and SET ASIDE.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Panganiban, Quisumbing, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.
Vitug, J., in the result.
Ynares-Santiago, J. on leave.

[1]
 Rollo, pp. 18-21.
[2]
 Commissioner Alfredo L. Benipayo (Chairman), Commissioners Luzviminda G. Tancangco, Rufino S.B.
Javier, Ralph C. Lantion, Mehol K. Sadain, Resurreccion Z. Borra, and Florentino A. Tuason, Jr.
(members).
[3]
 Rollo, pp. 24, 25-29.
[4]
 Id. at 24.
[5]
 Id. at 20.
[6]
 Id. at 21.
[7]
 132 Phil. 353 (1968 ).
[8]
 375 SCRA 523 (2002).
[9]
 Bince, Jr. vs. Commission on Elections, 218 SCRA 782 (1993).
[10]
 Supra.
[11]
 Rollo, p. 44.
[12]
 315 SCRA 693 (1999).
[13]
 323 SCRA 403 (2000).
[14]
 Supra.
[15]
 Supra,
[16]
 See Severino S. Tabios, Annotation on Failure to Exhaust Administrative Remedies as a Ground for
Motion to Dismiss, 165 SCRA 352 (1988); Jariol vs. Comelec, 270 SCRA 255 (1997).
[17]
 Underscoring supplied.
[18]
 Supra.
[19]
 Supra.