-
Republic of the Philippines SUPREME COURT
Manila
EN BANC
G.R. No. 73155 July 11, 1986
PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO HILADO,
VIRGILIO GASTON, CONCHITA MINAYA, TERESITA ESTACIO, DESIDERIO
DEFERIA, ROMEO GAMBOA, ALBERTO LACSON, FE HOFILENA, EMILY JISON,
NIEVES LOPEZ AND CECILIA MAGSAYSAY, petitioners, vs. THE COMMISSION
ON ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS
OCCIDENTAL,respondents.
Gamboa & Hofilea Law Office for petitioners.
ALAMPAY, J.:
Prompted by the enactment of Batas Pambansa Blg. 885-An Act
Creating a New Province in the Island of Negros to be known as the
Province of Negros del Norte, which took effect on December 3,
1985, Petitioners herein, who are residents of the Province of
Negros Occidental, in the various cities and municipalities
therein, on December 23, 1985, filed with this Court a case for
Prohibition for the purpose of stopping respondents Commission on
Elections from conducting the plebiscite which, pursuant to and in
implementation of the aforesaid law, was scheduled for January 3,
1986. Said law provides:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the
municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla,
Victorias, E.R. Magalona; and Salvador Benedicto, all in the
northern portion of the Island of Negros, are hereby separated from
the province to be known as the Province of Negros del Norte.
SEC. 2. The boundaries of the new province shall be the southern
limits of the City of Silay, the Municipality of Salvador Benedicto
and the City of San Carlos on the south and the territorial limits
of the northern portion to the Island of Negros on the west, north
and east, comprising a territory of 4,019.95 square kilometers more
or less.
SEC. 3. The seat of government of the new province shall be the
City of Cadiz.
SEC. 4. A plebiscite shall be conducted in the proposed new
province which are the areas affected within a period of one
hundred and twenty days from the approval of this Act. After the
ratification of the creation of the Province of Negros del Norte by
a majority of the votes cast in such plebiscite, the President of
the Philippines shall appoint the first officials of the
province.
SEC. 5. The Commission on Elections shall conduct and supervise
the plebiscite herein provided, the expenses for which shall be
charged to local funds.
-
SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp.
23-24)
Petitioners contend that Batas Pambansa Blg. 885 is
unconstitutional and it is not in complete accord with the Local
Government Code as in Article XI, Section 3 of our Constitution, it
is expressly mandated that
See. 3. No province, city, municipality or barrio may be
created, divided, merged, abolished, or its boundary substantially
altered, except in accordance with the criteria established in the
local government code, and subject to the approval by a majority of
the votes in a plebiscite in the unit or units affected.
Section 197 of the Local Government Code enumerates the
conditions which must exist to provide the legal basis for the
creation of a provincial unit and these requisites are:
SEC. 197. Requisites for Creation. A province may be created if
it has a territory of at least three thousand five hundred square
kilometers, a population of at least five hundred thousand persons,
an average estimated annual income, as certified by the Ministry of
Finance, of not less than ten million pesos for the last three
consecutive years, and its creation shall not reduce the population
and income of the mother province or provinces at the time of said
creation to less than the minimum requirements under this section.
The territory need not be contiguous if it comprises two or more
islands.
The average estimated annual income shall include the income
alloted for both the general and infrastructural funds, exclusive
of trust funds, transfers and nonrecurring income. (Rollo, p.
6)
Due to the constraints brought about by the supervening
Christmas holidays during which the Court was in recess and unable
to timely consider the petition, a supplemental pleading was filed
by petitioners on January 4, 1986, averring therein that the
plebiscite sought to be restrained by them was held on January 3,
1986 as scheduled but that there are still serious issues raised in
the instant case affecting the legality, constitutionality and
validity of such exercise which should properly be passed upon and
resolved by this Court.
The plebiscite was confined only to the inhabitants of the
territory of Negros del N rte, namely: the Cities of Silay, Cadiz,
and San Carlos, and the municipalities of Calatrava, Taboso,
Escalante, Sagay, Manapla, Victorias, E.B. Magalona and Don
Salvador Benedicto. Because of the exclusions of the voters from
the rest of the province of Negros Occidental, petitioners found
need to change the prayer of their petition "to the end that the
constitutional issues which they have raised in the action will be
ventilated and given final resolution.'"At the same time, they
asked that the effects of the plebiscite which they sought to stop
be suspended until the Supreme Court shall have rendered its
decision on the very fundamental and far-reaching questions that
petitioners have brought out.
Acknowledging in their supplemental petition that supervening
events rendered moot the prayer in their initial petition that the
plebiscite scheduled for January 3, 1986, be enjoined, petitioners
plead, nevertheless, that-
... a writ of Prohibition be issued, directed to Respondent
Commission on Elections to desist from issuing official
proclamation of the results of the plebiscite held on January 3,
1986.
-
Finding that the exclusion and non-participation of the voters
of the Province of Negros Occidental other than those living within
the territory of the new province of Negros del Norte to be not in
accordance with the Constitution, that a writ of mandamus be
issued, directed to the respondent Commission on Elections, to
schedule the holding of another plebiscite at which all the
qualified voters of the entire Province of Negros Occidental as now
existing shall participate, at the same time making pronouncement
that the plebiscite held on January 3, 1986 has no legal effect,
being a patent legal nullity;
And that a similar writ of Prohibition be issued, directed to
the respondent Provincial Treasurer, to desist from ordering the
release of any local funds to answer for expenses incurred in the
holding of such plebiscite until ordered by the Court. (Rollo pp.
9-10).
Petitioners further prayed that the respondent COMELEC hold in
abeyance the issuance of any official proclamation of the results
of the aforestated plebiscite.
During the pendency of this case, a motion that he be allowed to
appear as amicus curiae in this case (dated December 27, 1985 and
filed with the Court on January 2, 1986) was submitted by former
Senator Ambrosio Padilla. Said motion was granted in Our resolution
of January 2, 1986.
Acting on the petition, as well as on the supplemental petition
for prohibition with preliminary injunction with prayer for
restraining order, the Court, on January 7, 1986 resolved, without
giving due course to the same, to require respondents to comment,
not to file a motion to dismiss. Complying with said resolution,
public respondents, represented by the Office of the Solicitor
General, on January 14, 1986, filed their Comment, arguing therein
that the challenged statute.-Batas Pambansa 885, should be accorded
the presumption of legality. They submit that the said law is not
void on its face and that the petition does not show a clear,
categorical and undeniable demonstration of the supposed
infringement of the Constitution. Respondents state that the powers
of the Batasang-Pambansa to enact the assailed law is beyond
question. They claim that Batas Pambansa Big. 885 does not infringe
the Constitution because the requisites of the Local Government
Code have been complied with. Furthermore, they submit that this
case has now become moot and academic with the proclamation of the
new Province of Negros del Norte.
Respondents argue that the remaining cities and municipalities
of the Province of Negros Occidental not included in the area of
the new Province of Negros del Norte, de not fall within the
meaning and scope of the term "unit or units affected", as referred
to in Section 3 of Art. XI of our Constitution. On this reasoning,
respondents maintain that Batas Pambansa Blg. 885 does not violate
the Constitution, invoking and citing the case of Governor Zosimo
Paredes versus the Honorable Executive Secretary to the President,
et al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61), particularly
the pronouncements therein, hereunder quoted:
1. Admittedly,this is one of those cases where the discretion of
the Court is allowed considerable leeway. There is indeed an
element of ambiguity in the use of the expression 'unit or units
affected'. It is plausible to assert as petitioners do that when
certain Barangays are separated from a parent municipality to form
a new one, all the voters therein are affected. It is much more
persuasive, however, to contend as respondents do that the
acceptable construction is for those voters, who are not from the
barangays to be separated, should be excluded in the
plebiscite.
2. For one thing, it is in accordance with the settled doctrine
that between two possible constructions, one avoiding a finding of
unconstitutionality and the other
-
yielding such a result, the former is to be preferred. That
which will save, not that which will destroy, commends itself for
acceptance. After all, the basic presumption all these years is one
of validity. ...
3. ... Adherence to such philosophy compels the conclusion that
when there are indications that the inhabitants of several
barangays are inclined to separate from a parent municipality they
should be allowed to do so. What is more logical than to ascertain
their will in a plebiscite called for that purpose. It is they, and
they alone, who shall constitute the new unit. New responsibilities
will be assumed. New burdens will be imposed. A new municipal
corporation will come into existence. Its birth will be a matter of
choice-their choice. They should be left alone then to decide for
themselves. To allow other voters to participate will not yield a
true expression of their will. They may even frustrate it, That
certainly will be so if they vote against it for selfish reasons,
and they constitute the majority. That is not to abide by the
fundamental principle of the Constitution to promote local
autonomy, the preference being for smaller units. To rule as this
Tribunal does is to follow an accepted principle of constitutional
construction, that in ascertaining the meaning of a particular
provision that may give rise to doubts, the intent of the framers
and of the people may be gleaned from provisions in pari
materia.
Respondents submit that said ruling in the aforecited case
applies equally with force in the case at bar. Respondents also
maintain that the requisites under the Local Government Code (P.D.
337) for the creation of the new province of Negros del Norte have
all been duly complied with, Respondents discredit petitioners'
allegations that the requisite area of 3,500 square kilometers as
so prescribed in the Local Government Code for a new province to be
created has not been satisfied. Petitioners insist that the area
which would comprise the new province of Negros del Norte, would
only be about 2,856.56 square kilometers and which evidently would
be lesser than the minimum area prescribed by the governing
statute. Respondents, in this regard, point out and stress that
Section 2 of Batas Pambansa Blg. 885 creating said new province
plainly declares that the territorial boundaries of Negros del
Norte comprise an area of 4,019.95 square kilometers, more or
less.
As a final argument, respondents insist that instant petition
has been rendered moot and academic considering that a plebiscite
has been already conducted on January 3, 1986; that as a result
thereof, the corresponding certificate of canvass indicated that
out of 195,134 total votes cast in said plebiscite, 164,734 were in
favor of the creation of Negros del Norte and 30,400 were against
it; and because "the affirmative votes cast represented a majority
of the total votes cast in said plebiscite, the Chairman of the
Board of Canvassers proclaimed the new province which shall be
known as "Negros del Norte". Thus, respondents stress the fact that
following the proclamation of Negros del Norte province, the
appointments of the officials of said province created were
announced. On these considerations, respondents urge that this case
should be dismissed for having been rendered moot and academic as
the creation of the new province is now a "fait accompli."
In resolving this case, it will be useful to note and emphasize
the facts which appear to be agreed to by the parties herein or
stand unchallenged.
Firstly, there is no disagreement that the Provincial Treasurer
of the Province of Negros Occidental has not disbursed, nor was
required to disburse any public funds in connection with the
plebiscite held on January 3, 1986 as so disclosed in the Comment
to the Petition filed by the respondent Provincial Treasurer of
Negros Occidental dated January 20, 1986 (Rollo, pp. 36-37). Thus,
the prayer of the petitioners that said Provincial Treasurer be
directed by this Court to desist from ordering the release of any
public funds on account of such plebiscite should not longer
deserve further consideration.
-
Secondly, in Parliamentary Bill No. 3644 which led to the
enactment of Batas Pambansa Blg. 885 and the creation of the new
Province of Negros del Norte, it expressly declared in Sec. 2 of
the aforementioned Parliamentary Bill, the following:
SEC. 2. The boundaries of the new province shall be the southern
limits of the City of Silay, the Municipality of Salvador Benedicto
and the City of San Carlos on the South and the natural boundaries
of the northern portion of the Island of Negros on the West, North
and East, containing an area of 285,656 hectares more or less.
(Emphasis supplied).
However, when said Parliamentary Bill No. 3644 was very quickly
enacted into Batas Pambansa Blg. 885, the boundaries of the new
Province of Negros del Norte were defined therein and its
boundaries then stated to be as follows:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the
municipalities of Calatrava, Toboso, Escalante, Sagay, Manapla,
Victorias, E.R. Magalona; and Salvador Benedicto, all in the
northern portion of the Island of Negros, are hereby separated from
the Province of Negros Occidental and constituted into a new
province to be known as the Province of Negros del Norte.
SEC. 1. The boundaries of the new province shall be the southern
limits of the City of Silay, the Municipality of Salvador Benedicto
and the City of San Carlos on the south and the territorial limits
of the northern portion of the Island of Negros on the West, North
and East, comprising a territory of 4,019.95 square kilometers more
or less.
Equally accepted by the parties is the fact that under the
certification issued by Provincial Treasurer Julian L. Ramirez of
the Province of Negros Occidental, dated July 16, 1985, it was
therein certified as follows:
xxx xxx xxx
This is to certify that the following cities and municipalities
of Negros Occidental have the land area as indicated hereunder
based on the Special Report No. 3, Philippines 1980, Population,
Land Area and Density: 1970, 1975 and 1980 by the National Census
and Statistics Office, Manila.
Land Area
(Sq. Km.)
1. Silay City
...................................................................214.8
2. E.B.
Magalona............................................................113.3
3.
Victorias.....................................................................133.9
4.
Manapla......................................................................112.9
5. Cadiz City
..................................................................516.5
6. Sagay
.........................................................................389.6
-
7. Escalante
....................................................................124.0
8.
Toboso.......................................................................123.4
9.
Calatrava.....................................................................504.5
10. San Carlos
City...........................................................451.3
11. Don Salvador Benedicto....................................
(not available)
This certification is issued upon the request of Dr. Patricio Y.
Tan for whatever purpose it may serve him.
(SGD.) JULIAN L. RAMIREZ
Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).
Although in the above certification it is stated that the land
area of the relatively new municipality of Don Salvador Benedicto
is not available, it is an uncontradicted fact that the area
comprising Don Salvador municipality, one of the component units of
the new province, was derived from the City of San Carlos and from
the Municipality of Calatrava, Negros Occidental, and added thereto
was a portion of about one-fourth the land area of the town of
Murcia, Negros Occidental. It is significant to note the
uncontroverted submission of petitioners that the total land area
of the entire municipality of Murcia, Negros Occidental is only
322.9 square kilometers (Exh. "D", Rollo, p. 91). One-fourth of
this total land area of Murcia that was added to the portions
derived from the land area of Calatrava, Negros Occidental and San
Carlos City (Negros Occidental) would constitute, therefore, only
80.2 square kilometers. This area of 80.2 square kilometers if then
added to 2,685.2 square kilometers, representing the total land
area of the Cities of Silay, San Carlos and Cadiz and the
Municipalities of E.R. Magalona, Victorias, Manapla, Sagay,
Escalante, Taboso and Calatrava, will result in approximately an
area of only 2,765.4 square kilometers using as basis the Special
Report, Philippines 1980, Population, Land Area and Density: 1970,
1975 and 1980 of the National Census and Statistics Office, Manila
(see Exhibit "C", Rollo, p. 90).
No controversion has been made by respondent with respect to the
allegations of petitioners that the original provision in the draft
legislation, Parliamentary Bill No. 3644, reads:
SEC. 4. A plebiscite shall be conducted in the areas affected
within a period of one hundred and twenty days from the approval of
this Act. After the ratification of the creation of the Province of
Negros del Norte by a majority of the votes cast in such
plebiscite, the President shall appoint the first officials of the
new province.
However, when Batas Pambansa Blg. 885 was enacted, there was a
significant change in the above provision. The statute, as
modified, provides that the requisite plebiscite "shall be
conducted in the proposed new province which are the areas
affected."
It is this legislative determination limiting the plebiscite
exclusively to the cities and towns which would comprise the new
province that is assailed by the petitioners as violative of the
provisions of our Constitution. Petitioners submit that Sec. 3, ART
XI thereof, contemplates a plebiscite that would be held in the
unit or units affected by the creation of the new province as a
result of the consequent division of and substantial alteration of
the boundaries of the existing province. In this instance, the
-
voters in the remaining areas of the province of Negros
Occidental should have been allowed to participate in the
questioned plebiscite.
Considering that the legality of the plebiscite itself is
challenged for non-compliance with constitutional requisites, the
fact that such plebiscite had been held and a new province
proclaimed and its officials appointed, the case before Us cannot
truly be viewed as already moot and academic. Continuation of the
existence of this newly proclaimed province which petitioners
strongly profess to have been illegally born, deserves to be
inquired into by this Tribunal so that, if indeed, illegality
attaches to its creation, the commission of that error should not
provide the very excuse for perpetuation of such wrong. For this
Court to yield to the respondents' urging that, as there has been
fait accompli then this Court should passively accept and accede to
the prevailing situation is an unacceptable suggestion. Dismissal
of the instant petition, as respondents so propose is a proposition
fraught with mischief. Respondents' submission will create a
dangerous precedent. Should this Court decline now to perform its
duty of interpreting and indicating what the law is and should be,
this might tempt again those who strut about in the corridors of
power to recklessly and with ulterior motives, create, merge,
divide and/or alter the boundaries of political subdivisions,
either brazenly or stealthily, confident that this Court will
abstain from entertaining future challenges to their acts if they
manage to bring about a fait accompli.
In the light of the facts and circumstances alluded to by
petitioners as attending to the unusually rapid creation of the
instant province of Negros del Norte after a swiftly scheduled
plebiscite, this Tribunal has the duty to repudiate and discourage
the commission of acts which run counter to the mandate of our
fundamental law, done by whatever branch of our government. This
Court gives notice that it will not look with favor upon those who
may be hereafter inclined to ram through all sorts of legislative
measures and then implement the same with indecent haste, even if
such acts would violate the Constitution and the prevailing
statutes of our land. It is illogical to ask that this Tribunal be
blind and deaf to protests on the ground that what is already done
is done. To such untenable argument the reply would be that, be
this so, the Court, nevertheless, still has the duty and right to
correct and rectify the wrong brought to its attention.
On the merits of the case.
Aside from the simpler factual issue relative to the land area
of the new province of Negros del Norte, the more significant and
pivotal issue in the present case revolves around in the
interpretation and application in the case at bar of Article XI,
Section 3 of the Constitution, which being brief and for
convenience, We again quote:
SEC. 3. No province, city, municipality or barrio may be
created, divided, merged abolished, or its boundary substantially
altered, except in accordance with the criteria established in the
local government code, and subject to the approval by a majority of
the votes in a plebiscite in the unit or units affected.
It can be plainly seen that the aforecited constitutional
provision makes it imperative that there be first obtained "the
approval of a majority of votes in the plebiscite in the unit or
units affected" whenever a province is created, divided or merged
and there is substantial alteration of the boundaries. It is thus
inescapable to conclude that the boundaries of the existing
province of Negros Occidental would necessarily be substantially
altered by the division of its existing boundaries in order that
there can be created the proposed new province of Negros del Norte.
Plain and simple logic will demonstrate than that two political
units would be affected. The first would be the parent province of
Negros Occidental because its boundaries would be substantially
altered. The other affected entity would be composed of those in
the area subtracted from the mother province to constitute the
proposed province of Negros del Norte.
-
We find no way to reconcile the holding of a plebiscite that
should conform to said constitutional requirement but eliminates
the participation of either of these two component political units.
No amount of rhetorical flourishes can justify exclusion of the
parent province in the plebiscite because of an alleged intent on
the part of the authors and implementors of the challenged statute
to carry out what is claimed to be a mandate to guarantee and
promote autonomy of local government units. The alleged good
intentions cannot prevail and overrule the cardinal precept that
what our Constitution categorically directs to be done or imposes
as a requirement must first be observed, respected and complied
with. No one should be allowed to pay homage to a supposed
fundamental policy intended to guarantee and promote autonomy of
local government units but at the same time transgress, ignore and
disregard what the Constitution commands in Article XI Section 3
thereof. Respondents would be no different from one who hurries to
pray at the temple but then spits at the Idol therein.
We find no merit in the submission of the respondents that the
petition should be dismissed because the motive and wisdom in
enacting the law may not be challenged by petitioners. The
principal point raised by the petitioners is not the wisdom and
motive in enacting the law but the infringement of the Constitution
which is a proper subject of judicial inquiry.
Petitioners' discussion regarding the motives behind the
enactment of B.P. Blg. 885 to say the least, are most enlightening
and provoking but are factual issues the Court cannot properly pass
upon in this case. Mention by petitioners of the unexplained
changes or differences in the proposed Parliamentary Bill No. 3644
and the enacted Batas Pambansa Blg. 885; the swift and
surreptitious manner of passage and approval of said law; the
abrupt scheduling of the plebiscite; the reference to news articles
regarding the questionable conduct of the said plebiscite held on
January 3, 1986; all serve as interesting reading but are not the
decisive matters which should be reckoned in the resolution of this
case.
What the Court considers the only significant submissions
lending a little support to respondents' case is their reliance on
the rulings and pronouncements made by this Court in the case of
Governor Zosimo Paredes versus The Honorable Executive Secretary to
the President, et al., G.R. No. 55628, March 2, 1984 (128 SCRA 6).
In said case relating to a plebiscite held to ratify the creation
of a new municipality from existing barangays, this Court upheld
the legality of the plebiscite which was participated in
exclusively by the people of the barangay that would constitute the
new municipality.
This Court is not unmindful of this solitary case alluded to by
respondents. What is, however, highly significant are the prefatory
statements therein stating that said case is "one of those cases
where the discretion of the Court is allowed considerable leeway"
and that "there is indeed an element of ambiguity in the use of the
expression unit or units affected." The ruling rendered in said
case was based on a claimed prerogative of the Court then to
exercise its discretion on the matter. It did not resolve the
question of how the pertinent provision of the Constitution should
be correctly interpreted.
The ruling in the aforestated case of Paredes vs. The Honorable
Executive Secretary, et al. (supra) should not be taken as a
doctrinal or compelling precedent when it is acknowledged therein
that "it is plausible to assert, as petitioners do, that when
certain Barangays are separated from a parent municipality to form
a new one, all the voters therein are affected."
It is relevant and most proper to mention that in the aforecited
case of Paredes vs. Executive Secretary, invoked by respondents, We
find very lucidly expressed the strong dissenting view of Justice
Vicente Abad Santos, a distinguished member of this Court, as he
therein voiced his opinion, which We hereunder quote:
-
2. ... when the Constitution speaks of "the unit or units
affected" it means all of the people of the municipality if the
municipality is to be divided such as in the case at bar or an of
the people of two or more municipalities if there be a merger. I
see no ambiguity in the Constitutional provision.
This dissenting opinion of Justice Vicente Abad Santos is the
forerunner of the ruling which We now consider applicable to the
case at bar, In the analogous case of Emilio C. Lopez, Jr., versus
the Honorable Commission on Elections, L-56022, May 31, 1985, 136
SCRA 633, this dissent was reiterated by Justice Abad Santos as he
therein assailed as suffering from a constitutional infirmity a
referendum which did not include all the people of Bulacan and
Rizal, when such referendum was intended to ascertain if the people
of said provinces were willing to give up some of their towns to
Metropolitan Manila. His dissenting opinion served as a useful
guideline in the instant case.
Opportunity to re-examine the views formerly held in said cases
is now afforded the present Court. The reasons in the mentioned
cases invoked by respondents herein were formerly considered
acceptable because of the views then taken that local autonomy
would be better promoted However, even this consideration no longer
retains persuasive value.
The environmental facts in the case before Us readily disclose
that the subject matter under consideration is of greater magnitude
with concomitant multifarious complicated problems. In the earlier
case, what was involved was a division of a barangay which is the
smallest political unit in the Local Government Code.
Understandably, few and lesser problems are involved. In the case
at bar, creation of a new province relates to the largest political
unit contemplated in Section 3, Art. XI of the Constitution. To
form the new province of Negros del Norte no less than three cities
and eight municipalities will be subtracted from the parent
province of Negros Occidental. This will result in the removal of
approximately 2,768.4 square kilometers from the land area of an
existing province whose boundaries will be consequently
substantially altered. It becomes easy to realize that the
consequent effects cf the division of the parent province
necessarily will affect all the people living in the separate areas
of Negros Occidental and the proposed province of Negros del Norte.
The economy of the parent province as well as that of the new
province will be inevitably affected, either for the better or for
the worse. Whatever be the case, either or both of these political
groups will be affected and they are, therefore, the unit or units
referred to in Section 3 of Article XI of the Constitution which
must be included in the plebiscite contemplated therein.
It is a well accepted rule that "in ascertaining the meaning of
a particular provision that may give rise to doubts, the intent of
the framers and of the people, may be gleaned from the provisions
in pari materia." Parliamentary Bill No. 3644 which proposed the
creation of the new province of Negros del Norte recites in Sec. 4
thereof that "the plebiscite shall be conducted in the areas
affected within a period of one hundred and twenty days from the
approval of this Act." As this draft legislation speaks of "areas,"
what was contemplated evidently are plurality of areas to
participate in the plebiscite. Logically, those to be included in
such plebiscite would be the people living in the area of the
proposed new province and those living in the parent province. This
assumption will be consistent with the requirements set forth in
the Constitution.
We fail to find any legal basis for the unexplained change made
when Parliamentary Bill No. 3644 was enacted into Batas Pambansa
Blg. 885 so that it is now provided in said enabling law that the
plebiscite "shall be conducted in the proposed new province which
are the areas affected." We are not disposed to agree that by mere
legislative fiat the unit or units affected referred in the
fundamental law can be diminished or restricted by the Batasang
Pambansa to cities and municipalities comprising the new province,
thereby ignoring the evident reality that there are other people
necessarily affected.
-
In the mind of the Court, the change made by those responsible
for the enactment of Batas Pambansa Blg. 885 betrays their own
misgivings. They must have entertained apprehensions that by
holding the plebiscite only in the areas of the new proposed
province, this tactic will be tainted with illegality. In
anticipation of a possible strong challenge to the legality of such
a plebiscite there was, therefore, deliberately added in the
enacted statute a self-serving phrase that the new province
constitutes the area affected. Such additional statement serves no
useful purpose for the same is misleading, erroneous and far from
truth. The remaining portion of the parent province is as much an
area affected. The substantial alteration of the boundaries of the
parent province, not to mention the other adverse economic effects
it might suffer, eloquently argue the points raised by the
petitioners.
Petitioners have averred without contradiction that after the
creation of Negros del Norte, the province of Negros Occidental
would be deprived of the long established Cities of Silay, Cadiz,
and San Carlos, as well as the municipality of Victorias. No
controversion has been made regarding petitioners' assertion that
the areas of the Province of Negros Occidental will be diminished
by about 285,656 hectares and it will lose seven of the fifteen
sugar mills which contribute to the economy of the whole province.
In the language of petitioners, "to create Negros del Norte, the
existing territory and political subdivision known as Negros
Occidental has to be partitioned and dismembered. What was involved
was no 'birth' but "amputation." We agree with the petitioners that
in the case of Negros what was involved was a division, a
separation; and consequently, as Sec. 3 of Article XI of the
Constitution anticipates, a substantial alteration of boundary.
As contended by petitioners,
Indeed, the terms 'created', 'divided', 'merged', 'abolished' as
used in the constitutional provision do not contemplate distinct
situation isolated from the mutually exclusive to each other. A
Province maybecreated where an existing province is divided or two
provinces merged. Such cases necessarily will involve existing unit
or units abolished and definitely the boundary being substantially
altered.
It would thus be inaccurate to state that where an existing
political unit is divided or its boundary substantially altered, as
the Constitution provides, only some and not all the voters in the
whole unit which suffers dismemberment or substantial alteration of
its boundary are affected. Rather, the contrary is true.
It is also Our considered view that even hypothetically assuming
that the merits of this case can depend on the mere discretion that
this Court may exercise, nevertheless, it is the petitioners' case
that deserve to be favored.
It is now time for this Court to set aside the equivocations and
the indecisive pronouncements in the adverted case of Paredes vs.
the Honorable Executive Secretary, et al. (supra). For the reasons
already here express, We now state that the ruling in the two
mentioned cases sanctioning the exclusion of the voters belonging
to an existing political unit from which the new political unit
will be derived, from participating in the plebiscite conducted for
the purpose of determining the formation of another new political
unit, is hereby abandoned.
In their supplemental petition, dated January 4, 1986, it is
prayed for by petitioners that a writ of mandamus be issued,
directing the respondent Commission on Elections, to schedule the
holding of another plebiscite at which all the qualified voters of
the entire province of Negros Occidental as now existing shall
participate and that this Court make a pronouncement that the
plebiscite held on January 3, 1986 has no legal effect for being a
patent nullity.
-
The Court is prepared to declare the said plebiscite held on
January 3, 1986 as null and void and violative of the provisions of
Sec. 3, Article XI of the Constitution. The Court is not, however,
disposed to direct the conduct of a new plebiscite, because We find
no legal basis to do so. With constitutional infirmity attaching to
the subject Batas Pambansa Big. 885 and also because the creation
of the new province of Negros del Norte is not in accordance with
the criteria established in the Local Government Code, the factual
and legal basis for the creation of such new province which should
justify the holding of another plebiscite does not exist.
Whatever claim it has to validity and whatever recognition has
been gained by the new province of Negros del Norte because of the
appointment of the officials thereof, must now be erased. That
Negros del Norte is but a legal fiction should be announced. Its
existence should be put to an end as quickly as possible, if only
to settle the complications currently attending to its creation. As
has been manifested, the parent province of Negros del Norte has
been impleaded as the defendant in a suit filed by the new Province
of Negros del Norte, before the Regional Trial Court of Negros (del
Norte), docketed as Civil Case No. 169-C, for the immediate
allocation, distribution and transfer of funds by the parent
province to the new province, in an amount claimed to be at least
P10,000,000.00.
The final nail that puts to rest whatever pretension there is to
the legality of the province of Negros del Norte is the significant
fact that this created province does not even satisfy the area
requirement prescribed in Section 197 of the Local Government Code,
as earlier discussed.
It is of course claimed by the respondents in their Comment to
the exhibits submitted by the petitioners (Exhs. C and D, Rollo,
pp. 19 and 91), that the new province has a territory of 4,019.95
square kilometers, more or less. This assertion is made to negate
the proofs submitted, disclosing that the land area of the new
province cannot be more than 3,500 square kilometers because its
land area would, at most, be only about 2,856 square kilometers,
taking into account government statistics relative to the total
area of the cities and municipalities constituting Negros del
Norte. Respondents insist that when Section 197 of the Local
Government Code speaks of the territory of the province to be
created and requires that such territory be at least 3,500 square
kilometers, what is contemplated is not only the land area but also
the land and water over which the said province has jurisdiction
and control. It is even the submission of the respondents that in
this regard the marginal sea within the three mile limit should be
considered in determining the extent of the territory of the new
province. Such an interpretation is strained, incorrect, and
fallacious.
The last sentence of the first paragraph of Section 197 is most
revealing. As so stated therein the "territory need not be
contiguous if it comprises two or more islands." The use of the
word territory in this particular provision of the Local Government
Code and in the very last sentence thereof, clearly reflects that
"territory" as therein used, has reference only to the mass of land
area and excludes the waters over which the political unit
exercises control.
Said sentence states that the "territory need not be
contiguous." Contiguous means (a) in physical contact; (b) touching
along all or most of one side; (c) near, text, or adjacent
(Webster's New World Dictionary, 1972 Ed., p. 307). "Contiguous",
when employed as an adjective, as in the above sentence, is only
used when it describes physical contact, or a touching of sides of
two solid masses of matter. The meaning of particular terms in a
statute may be ascertained by reference to words associated with or
related to them in the statute (Animal Rescue League vs. Assessors,
138 A.L.R. p. 110). Therefore, in the context of the sentence
above, what need not be "contiguous" is the "territory" the
physical mass of land area. There would arise no need for the
legislators to use the word contiguous if they had intended that
the term "territory" embrace not only land area but also
territorial waters. It can be safely concluded that the word
territory in the first paragraph of Section 197 is meant to be
synonymous with "land area" only. The words and phrases used in a
statute
-
should be given the meaning intended by the legislature (82
C.J.S., p. 636). The sense in which the words are used furnished
the rule of construction (In re Winton Lumber Co., 63 p. 2d., p.
664).
The distinction between "territory" and "land area" which
respondents make is an artificial or strained construction of the
disputed provision whereby the words of the statute are arrested
from their plain and obvious meaning and made to bear an entirely
different meaning to justify an absurd or unjust result. The plain
meaning in the language in a statute is the safest guide to follow
in construing the statute. A construction based on a forced or
artificial meaning of its words and out of harmony of the statutory
scheme is not to be favored (Helvering vs. Hutchings, 85 L. Ed., p.
909).
It would be rather preposterous to maintain that a province with
a small land area but which has a long, narrow, extended coast
line, (such as La Union province) can be said to have a larger
territory than a land-locked province (such as Ifugao or Benguet)
whose land area manifestly exceeds the province first
mentioned.
Allegations have been made that the enactment of the questioned
state was marred by "dirty tricks", in the introduction and passing
of Parliamentary Bill No. 3644 "in secret haste" pursuant to
sinister designs to achieve "pure and simple gerrymandering; "that
recent happenings more than amply demonstrate that far from
guaranteeing its autonomy it (Negros del Norte) has become the
fiefdom of a local strongman" (Rollo, p. 43; emphasis
supplied).
It is not for this Court to affirm or reject such matters not
only because the merits of this case can be resolved without need
of ascertaining the real motives and wisdom in the making of the
questioned law. No proper challenge on those grounds can also be
made by petitioners in this proceeding. Neither may this Court
venture to guess the motives or wisdom in the exercise of
legislative powers. Repudiation of improper or unwise actions taken
by tools of a political machinery rests ultimately, as recent
events have shown, on the electorate and the power of a vigilant
people.
Petitioners herein deserve and should receive the gratitude of
the people of the Province of Negros Occidental and even by our
Nation. Commendable is the patriotism displayed by them in daring
to institute this case in order to preserve the continued existence
of their historic province. They were inspired undoubtedly by their
faithful commitment to our Constitution which they wish to be
respected and obeyed. Despite the setbacks and the hardships which
petitioners aver confronted them, they valiantly and unfalteringly
pursued a worthy cause. A happy destiny for our Nation is assured
as long as among our people there would be exemplary citizens such
as the petitioners herein.
WHEREFORE, Batas Pambansa Blg. 885 is hereby declared
unconstitutional. The proclamation of the new province of Negros
del Norte, as well as the appointment of the officials thereof are
also declared null and void.
SO ORDERED.
Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz
and Paras, JJ., concur.
Melencio-Herrera, J., concurs in the result.
-
Separate Opinions
TEEHANKEE, C.J., concurring:
I congratulate my brethren for the unanimous decision we issue
today striking down an Act approved in "deep secrecy and inordinate
haste" apparently on the last day of session of the Batasang
Pambansa on December 3, 1985 and signed on the same day by the then
President of the authoritarian regime. The Act provided for the
partitioning of the province of Negros Occidental and would
substantially alter its boundaries by lopping off the progressive
cities of Silay, Cadiz and San Carlos and municipality of Victorias
with seven other municipalities to constitute the proposed new
province of Negros del Norte. Negros Occidental would thereby lose
4,019.95 square kilometers in area and seven of fifteen sugar mills
which contribute to the economic progress and welfare of the whole
province.
The discredited Commission on Elections of the time played its
customary subservient role by setting the plebiscite with equal
"indecent haste" for January 3, 1986, notwithstanding that the Act
itself provided for an ample period of 120 days from its approval
within which to inform the people of the proposed dismemberment and
allow them to freely express and discuss the momentous issue and
cast their vote intelligently. This was learned by petitioners
through an item in the printed media one day before they filed the
present rush petition on December 23, 1985 to seek a restraining
order to atop the plebiscite, even as no printed copies of the Act
as finally enacted and approved were available to them and the Act
had not been published, as required by law, for its effectivity. As
petitioners ruefully state: "it was in vain hope" for everything
had apparently been timed for the Christmas holidays; the Court was
in Christmas recess and "there was no chance to have their plea for
a restraining order acted upon speedily enough." In fact, it was
only on January 7, 1986 that the Court took cognizance of the
petition and required respondents' comment.
The scenario, as petitioners urgently asserted, was "to have the
creation of the new Province a fait accompli by the time elections
are held on February 7, 1986. The transparent purpose is
unmistakably so that the new Governor and other officials shall by
then have been installed in office, ready to function for purposes
of the election for President and Vice-President." Thus, the
petitioners reported after the event: "With indecent haste, the
plebiscite was held; Negros del Norte was set up and proclaimed by
President Marcos as in existence; a new set of government officials
headed by Governor Armando Gustilo was appointed; and, by the time
the elections were held on February 7, 1986, the political
machinery was in place to deliver the 'solid North' to ex-President
Marcos. The rest is history. What happened in Negros del Norte
during the elections-the unashamed use of naked power and resources
contributed in no small way to arousing 'people's power' and steel
the ordinary citizen to perform deeds of courage and patriotism
that makes one proud to be a Filipino today. (Record, pp. 9,
41).
The challenged Act is manifestly void and unconstitutional.
Consequently, all the implementing acts complained of, viz. the
plebiscite, the proclamation of a new province of Negros del Norte
and the appointment of its officials are equally void. The limited
holding of the plebiscite only in the areas of the proposed new
province (as provided by Section 4 of the Act) to the exclusion of
the voters of the remaining areas of the integral province of
Negros Occidental (namely, the three cities of Bacolod, Bago and La
Carlota and the Municipalities of La Castellana, Isabela, Moises
Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia,
Valladolid, San Enrique, Ilog, Cauayan ,Hinoba-an and Sipalay and
Candoni), grossly contravenes and disregards the mandate of Article
XI, section 3 of the then prevailing 1973 Constitution that no
province may be created or divided or its boundary substantially
altered without "the approval of a majority of the votes in a
plebiscite in the unit or units
-
affected." It is plain that all the cities and municipalities of
the province of Negros Occidental, not merely those of the proposed
new province, comprise the units affected. It follows that the
voters of the whole and entire province of Negros Occidental have
to participate and give their approval in the plebiscite, because
the whole province is affected by its proposed division and
substantial alteration of its boundary. To limit the plebiscite to
only the voters of the areas to be partitioned and seceded from the
province is as absurd and illogical as allowing only the
secessionists to vote for the secession that they demanded against
the wishes of the majority and to nullify the basic principle of
majority rule.
The argument of fait accompli viz. that the railroaded
plebiscite of January 3, 1986 was held and can no longer be
enjoined and that the new province of Negros del Norte has been
constituted, begs the issue of invalidity of the challenged Act.
This Court has always held that it "does not look with favor upon
parties 'racing to beat an injunction or restraining order' which
they have reason to believe might be forthcoming from the Court by
virtue of the filing and pendency of the appropriate petition
therefor. Where the restraining order or preliminary injunction are
found to have been properly issued, as in the case at bar,
mandatory writs shall be issued by the Court to restore matters to
thestatus quo ante." (Banzon v. Cruz, 45 SCRA 475, 506 [1972]).
Where, as in this case, there was somehow a failure to properly
issue the restraining order stopping the holding of the illegal
plebiscite, the Court will issue the mandatory writ or judgment to
restore matters to the status quo ante and restore the territorial
integrity of the province of Negros Occidental by declaring the
unconstitutionality of the challenged Act and nullifying the
invalid proclamation of the proposed new province of Negros del
Norte and the equally invalid appointment of its officials.
Separate Opinions
TEEHANKEE, C.J., concurring:
I congratulate my brethren for the unanimous decision we issue
today striking down an Act approved in "deep secrecy and inordinate
haste" apparently on the last day of session of the Batasang
Pambansa on December 3, 1985 and signed on the same day by the then
President of the authoritarian regime. The Act provided for the
partitioning of the province of Negros Occidental and would
substantially alter its boundaries by lopping off the progressive
cities of Silay, Cadiz and San Carlos and municipality of Victorias
with seven other municipalities to constitute the proposed new
province of Negros del Norte. Negros Occidental would thereby lose
4,019.95 square kilometers in area and seven of fifteen sugar mills
which contribute to the economic progress and welfare of the whole
province.
The discredited Commission on Elections of the time played its
customary subservient role by setting the plebiscite with equal
"indecent haste" for January 3, 1986, notwithstanding that the Act
itself provided for an ample period of 120 days from its approval
within which to inform the people of the proposed dismemberment and
allow them to freely express and discuss the momentous issue and
cast their vote intelligently. This was learned by petitioners
through an item in the printed media one day before they filed the
present rush petition on December 23, 1985 to seek a restraining
order to atop the plebiscite, even as no printed copies of the Act
as finally enacted and approved were available to them and the Act
had not been published, as required by law, for its effectivity. As
petitioners ruefully state: "it was in vain hope" for everything
had apparently been timed for the Christmas holidays; the Court was
in Christmas recess and "there was no chance to have their plea for
a restraining order acted upon speedily enough." In fact, it was
only on January 7, 1986 that the Court took cognizance of the
petition and required respondents' comment.
-
The scenario, as petitioners urgently asserted, was "to have the
creation of the new Province a fait accompli by the time elections
are held on February 7, 1986. The transparent purpose is
unmistakably so that the new Governor and other officials shall by
then have been installed in office, ready to function for purposes
of the election for President and Vice-President." Thus, the
petitioners reported after the event: "With indecent haste, the
plebiscite was held; Negros del Norte was set up and proclaimed by
President Marcos as in existence; a new set of government officials
headed by Governor Armando Gustilo was appointed; and, by the time
the elections were held on February 7, 1986, the political
machinery was in place to deliver the 'solid North' to ex-President
Marcos. The rest is history. What happened in Negros del Norte
during the elections-the unashamed use of naked power and resources
contributed in no small way to arousing 'people's power' and steel
the ordinary citizen to perform deeds of courage and patriotism
that makes one proud to be a Filipino today. (Record, pp. 9,
41).
The challenged Act is manifestly void and unconstitutional.
Consequently, all the implementing acts complained of, viz. the
plebiscite, the proclamation of a new province of Negros del Norte
and the appointment of its officials are equally void. The limited
holding of the plebiscite only in the areas of the proposed new
province (as provided by Section 4 of the Act) to the exclusion of
the voters of the remaining areas of the integral province of
Negros Occidental (namely, the three cities of Bacolod, Bago and La
Carlota and the Municipalities of La Castellana, Isabela, Moises
Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia,
Valladolid, San Enrique, Ilog, Cauayan ,Hinoba-an and Sipalay and
Candoni), grossly contravenes and disregards the mandate of Article
XI, section 3 of the then prevailing 1973 Constitution that no
province may be created or divided or its boundary substantially
altered without "the approval of a majority of the votes in a
plebiscite in the unit or units affected." It is plain that all the
cities and municipalities of the province of Negros Occidental, not
merely those of the proposed new province, comprise the units
affected. It follows that the voters of the whole and entire
province of Negros Occidental have to participate and give their
approval in the plebiscite, because the whole province is affected
by its proposed division and substantial alteration of its
boundary. To limit the plebiscite to only the voters of the areas
to be partitioned and seceded from the province is as absurd and
illogical as allowing only the secessionists to vote for the
secession that they demanded against the wishes of the majority and
to nullify the basic principle of majority rule.
The argument of fait accompli viz. that the railroaded
plebiscite of January 3, 1986 was held and can no longer be
enjoined and that the new province of Negros del Norte has been
constituted, begs the issue of invalidity of the challenged Act.
This Court has always held that it "does not look with favor upon
parties 'racing to beat an injunction or restraining order' which
they have reason to believe might be forthcoming from the Court by
virtue of the filing and pendency of the appropriate petition
therefor. Where the restraining order or preliminary injunction are
found to have been properly issued, as in the case at bar,
mandatory writs shall be issued by the Court to restore matters to
thestatus quo ante." (Banzon v. Cruz, 45 SCRA 475, 506 [1972]).
Where, as in this case, there was somehow a failure to properly
issue the restraining order stopping the holding of the illegal
plebiscite, the Court will issue the mandatory writ or judgment to
restore matters to the status quo ante and restore the territorial
integrity of the province of Negros Occidental by declaring the
unconstitutionality of the challenged Act and nullifying the
invalid proclamation of the proposed new province of Negros del
Norte and the equally invalid appointment of its officials.
-
EN BANC
[G.R. No. 120318. December 5, 1997]
RICARDO "BOY" CANICOSA, petitioner, vs. COMMISSION ON ELECTIONS,
MUNICIPAL BOARD OF CANVASSERS OF CALAMBA LAGUNA and SEVERINO
LAJARA, respondents.
D E C I S I O N
BELLOSILLO, J.:
RICARDO "BOY" CANICOSA and SEVERINO LAJARA were candidates for
mayor in Calamba, Laguna, during the 8 May 1995 elections. After
obtaining a majority of some 24,000 votes[1]
Lajara was proclaimed winner by
the Municipal Board of Canvassers. On 15 May 1995 Canicosa filed
with the Commission on Elections (COMELEC)a Petition to Declare
Failure of Election and to Declare Null and Void the Canvass and
Proclamation because of alleged widespread frauds and anomalies in
casting and counting of votes, preparation of election returns,
violence, threats, intimidation, vote buying, unregistered voters
voting, and delay in the delivery of election documents and
paraphernalia from the precincts to the Office of the Municipal
Treasurer. Canicosa particularly averred that: (a) the names of the
registered voters did not appear in the list of voters in their
precincts; (b) more than one-half of the legitimate registered
voters were not able to vote with strangers voting in their stead;
(c) he was credited with less votes than he actually received; (d)
control data of the election returns was not filled up in some
precincts; (e) ballot boxes brought to the Office of the Municipal
Treasurer were unsecured, i.e., without padlocks nor self-locking
metal seals; and, (f) there was delay in the delivery of election
returns. But the COMELEC en bancdismissed the petition on the
ground that the allegations therein did not justify a declaration
of failure of election.
Indeed, the grounds cited by Canicosa do not warrant a
declaration of
failure of election. Section 6 of BP Blg. 881, otherwise known
as the Omnibus Election Code,reads:
Sec. 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 on a date
reasonably close to the date 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 or failure to
elect.
Clearly, there are only three (3) instances where a failure of
election may be declared, namely: (a) the election in any polling
place has not been held on the date fixedon account of force
majeure, violence, terrorism, fraud, or other analogous causes; (b)
the election in any polling place had 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 causes; 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.
None of the grounds invoked by Canicosa falls under any of those
enumerated.
Canicosa bewails that the names of the registered voters in the
various precincts did not appear in their respective lists of
voters. But this is not a ground to declare a failure of election.
The filing of a petition for declaration of failure of election
therefore is not the proper remedy. The day following the last day
for registration of voters, the poll clerk delivers a certified
list of voters to the election registrar, election supervisor and
the COMELEC, copies of which are open to public inspection. On the
same day, the poll clerk posts a copy of the list of registered
voters in each polling place. Each member of the board of election
inspectors retains a copy of the list which may be inspected by the
public in their residence or in their office during office
hours.[2]
Fifteen (15) days before the regular elections on 8 May 1995 the
final list of voters was posted in each precinct pursuant to Sec.
148 of RA No. 7166. Based on the lists thus posted Canicosa could
have filed a petition for inclusion of registered voters with the
regular courts. The question of inclusion or exclusion from the
list of voters involves the right to vote [3]
which is not
within the power and authority of COMELEC to rule upon. The
determination of whether one has the right to vote is a justiciable
issue properly cognizable
-
by our regular courts. Section 138, Art. XII, of the Omnibus
Election Code states:
Sec. 138. Jurisdiction in inclusion and exclusion cases. - The
municipal and
metropolitan trial courts shall have original and exclusive
jurisdiction over all matters
of inclusion and exclusion of voters from the list in their
respective municipalities or
cities. Decisions of the municipal or metropolitan trial courts
may be appealed directly
by the aggrieved party to the proper regional trial court within
five days from receipts
of notice thereof, otherwise said decision of the municipal or
metropolitan trial court
shall decide the appeal within ten days from the time the appeal
was received and its
decision shall be immediately final and executory. No motion for
reconsideration shall
be entertained by the courts (Sec. 37, PD 1896, as amended).
On the other hand, Canicosa could have also filed with the
COMELEC a verified complaint seeking the annulment of the book of
voters pursuant to Sec. 10, of RA No. 7166:
Sec. 10. Annulment of the List of Voters. - Any book of voters
the preparation of
which has been affected with fraud, bribery, forgery,
impersonation, intimidation,
force or any other similar irregularity or which is
statistically improbable may be
annulled after due notice and hearing by the Commission motu
propio or after the
filing of a verified complaint: Provided, that no order, ruling
or decision annulling a
book of voters shall be executed within sixty (60) days before
an election.
If indeed the situation herein described was common in almost
all of the 557 precincts as alleged by Canicosa,[4]
then it was more expedient on his part to
avail of the remedies provided by law in order to maintain the
integrity of the election. Since Canicosa failed to resort to any
of the above options, the permanent list of voters as finally
corrected before the election remains conclusive on the question as
to who had the right to vote in that election, although not in
subsequent elections.[5]
Canicosa also avers that more than one-half (1/2) of the
legitimate registered voters were not able to vote, instead,
strangers voted in their behalf. Again, this is not a ground which
warrants a declaration of failure of election. Canicosa was allowed
to appoint a watcher in every precinct. The watcher is empowered by
law to challenge any illegal voter. Thus, Secs. 199 and 202, Art.
XVII, of the Omnibus Election Code, provide:
Sec. 199. Challenge of illegal voters. - (a) Any voter, or
watcher may challenge any
person offering to vote for not being registered, for using the
name of another or
suffering from existing disqualification. In such case, the
board of election inspectors
-
shall satisfy itself as to whether or not the ground for the
challenge is true by requiring
proof of registration or identity of the voter x x x x
Sec. 202. Record of challenges and oaths. - The poll clerk shall
keep a prescribed
record of challenges and oaths taken in connection therewith and
the resolution of the
board of election inspectors in each case and, upon the
termination of the voting, shall
certify that it contains all the challenges made x x x x
The claim of Canicosa that he was credited with less votes than
he actually received and that the control data of the election
returns was not filled up should have been raised in the first
instance before the board of election inspectors or board of
canvassers. Section 179, Art. XV, of the Omnibus Election Code
clearly provides for the rights and duties of watchers -
Sec. 179. Rights and duties of watchers. - x x x x The watchers
x x x shall have the
right to witness and inform themselves of the proceedings of the
board of election
inspectors x x x to file a protest against any irregularity or
violation of law which they
believe may have been committed by the board of election
inspectors or by any of its
members or by any persons, to obtain from the board of election
inspectors a
certificate as to the filing of such protest and/or of the
resolution thereon x x x and to
be furnished with a certificate of the number of votes in words
and figures cast for
each candidate, duly signed and thumbmarked by the chairman and
all the members of
the board of election inspectors x x x x
To safeguard and maintain the sanctity of election returns, Sec.
212, Art. XVIII, of the Omnibus Election Code states -
Sec. 212. Election returns. - x x x x Immediately upon the
accomplishment of the
election returns, each copy thereof shall be sealed in the
presence of the watchers and
the public, and placed in the proper envelope, which shall
likewise be sealed and
distributed as herein provided.
Furthermore, it is provided in Sec. 215 of the Omnibus Election
Code that -
Sec. 215. Board of election inspectors to issue a certificate of
the number of votes
polled by the candidates for an office to the watchers. - After
the announcement of the
results of the election and before leaving the polling place, it
shall be the duty of the
board of election inspectors to issue a certificate of the
number of votes received by a
candidate upon request of the watchers. All members of the board
of election
inspectors shall sign the certificate.
-
Supplementing the preceding provisions, Secs. 16 and 17 of RA
No. 6646 also require -
Sec. 16. Certification of votes. - After the counting of the
votes cast in the precinct
and announcement of the results of the election, and before
leaving the polling place,
the board of election inspectors shall issue a certificate of
votes upon request of the
duly accredited watchers x x x x
Sec. 17. Certificate of Votes as Evidence. - The provisions of
Secs. 235 and 236 of
Batas Pambansa Blg. 881 notwithstanding, the certificate of
votes shall be admissible
in evidence to prove tampering, alteration, falsification or
anomaly committed in the
election returns concerned x x x x
From the foregoing provisions, it is clear that in case of
inconsistency as to the number of votes written in the election
returns and the certificate of votes, a petition for correction of
election returns must immediately be filed with COMELEC by all or a
majority of the members of the board of election inspectors or any
candidate affected by the error or mistake. In order to make out a
case for correction of election returns, there must be an error and
at least a majority of the members of the board of election
inspectors agrees that such error existed. Canicosa never mentioned
that he petitioned for the correction of the election returns
before the COMELEC
Canicosa complains that the election returns were delivered late
and the ballot boxes brought to the Office of the Municipal
Treasurer unsecured, i.e., without padlocks nor self-locking metal
seals. These bare allegations cannot impel us to declare failure of
election. Assuming that the election returns were delivered late,
we still cannot see why we should declare a failure to elect. The
late deliveries did not convert the election held in Calamba into a
mockery or farce to make us conclude that there was indeed a
failure of election.
In fine, the grounds cited by Canicosa in his petition do not
fall under any of the instances enumerated in Sec. 6 of the Omnibus
Election Code. In Mitmug v. Commission on Elections [6]
we ruled that before
COMELEC can act on a verified petition seeking to declare a
failure of election, at least two (2) conditions must concur:(a) no
voting has taken place in the precincts on the date fixed by law,
or even if there was voting, the election nevertheless resulted in
failure to elect; and, (b) the votes that were not cast would
affect the result of the election. From the face of the instant
petition, it is readily apparent than an election took place and
that it did not result in a failure to elect.[7]
-
Canicosa finally insists that it was error on the part of
COMELEC sitting en banc to rule on his petition. He maintains that
his petition should have first been heard by a division of COMELEC
and later by the COMELEC en banc upon motion for reconsideration,
pursuant to Sec. 3, Art. IX-C, of the Constitution.[8]
But this provision applies only when the COMELEC acts in the
exercise of its adjudicatory or quasi-judicial functions and not
when it merely exercises purely administrative functions. To
reiterate, the grounds cited by Canicosa in his petition are that:
(a) the names of the registered voters did not appear in the list
of voters in their respective precincts; (b) more than one-half of
the legitimate registered voters were not able to vote with
strangers voting in their stead; (c) he was credited with less
votes than he actually received; (d) the control data of the
election returns was not filled up in some precincts; (e) ballot
boxes brought to the Office of the Municipal Treasurer were
unsecured, i. e., without padlocks nor self-locking metal seals;
and, (f) there was delay in the delivery of election returns.
Clearly, all these matters require the exercise by the COMELEC
of its administrative functions. Section 2, Art. IX-C, of the 1987
Constitution grants extensive administrative powers to the COMELEC
with regard to the enforcement and administration of all laws and
regulations relative to the conduct of elections. Likewise, Sec. 52
of BP Blg. 881, otherwise known as the Omnibus Election Code,
states:
Sec. 52. Powers and functions of the Commission on Elections. -
In addition to the
powers and functions conferred upon it by the Constitution, the
Commission shall
have exclusive charge of the enforcement and administration of
all laws relative to the
conduct of elections for the purpose of ensuring free, orderly
and honest elections x x
x x
Quite obviously, it is only in the exercise of its adjudicatory
or quasi-judicial powers that the COMELEC is mandated to hear and
decide cases first by Division and then, upon motion for
reconsideration, by the COMELEC en banc. This is when it is
jurisdictional. In the instant case, as aforestated, the issues
presented demand only the exercise by the COMELEC of its
administrative functions.
The COMELEC exercises direct and immediate supervision and
control over national and local officials or employees, including
members of any national or local law enforcement agency and
instrumentality of the government required by law to perform duties
relative to the conduct of elections. Its power of direct
supervision and control includes the power to
-
review, modify or set aside any act of such national and local
officials. [9] It exercises immediate supervision and control over
the members of the boards of election inspectors and canvassers.
Its statutory power of supervision and control includes
the power to revise, reverse or set aside the
action of the boards, as well as to do what the boards should
have done, even if questions relative thereto have not been
elevated to it by an aggrieved party, for such power includes the
authority to initiate motu proprio or by itself such steps or
actions as may be required pursuant to law.[10]
Specifically, Canicosa alleged that he was credited with less
votes than he actually received. But he did not raise any objection
before the Municipal Board of Canvassers; instead, he went directly
to the COMELEC. He now claims, after the COMELEC en banc dismissed
his petition, that it was error on the part of COMELEC to rule on
his petition while sitting en banc.
We have already disposed of this issue in Castromayor v.
Commission on Elections [11] thus should be pinpointed out, in this
connection, that what is involved here is a simple problem of
arithmetic. The Statement of Votes is merely a tabulation per
precinct of the votes obtained by the candidates as reflected in
the election returns. In making the correction in computation, the
MBC will be acting in an administrative capacity, under the control
and supervision of the COMELEC. Hence, any question pertaining to
the proceedings of the MBC may be raised directly to the COMELEC en
banc in the exercise of its constitutional function to decide
questions affecting elections.
Moreover, it is expressly provided in Rule 27, Sec. 7, of the
Comelec Rules of Procedure that any party dissatisfied with the
ruling of the board of canvassers shall have a right to appeal to
the COMELEC en banc:
Sec. 7. Correction of Errors in Tabulation or Tallying of
Results by the Board of
Canvassers. - (a) Where it is clearly shown before proclamation
that manifest errors
were committed in the tabulation or tallying or election
returns, or certificates of
canvass, during the canvassing as where (1) a copy of the
election returns of one
precinct or two or more copies of a certificate of canvass were
tabulated more than
once, (2) two copies of the election returns or certificate of
canvass were tabulated
separately, (3) there was a mistake in the adding or copying of
the
figures into the certificate of canvass or into the statement of
votes by precinct, or (4)
so-called election returns from non-existent precincts were
included in the canvass,
the board maymotu proprio, or upon verified petition by any
candidate, political party,
organization or coalition of political parties, after due notice
and hearing, correct the
-
errors committed x x x x (h) The appeal shall be heard and
decided by the
Commission en banc.
In Tatlonghari v. Commission on Elections [12] it was made to
appear in the Certificate of Canvass of Votes and Proclamation of
the Winning Candidates that respondent therein received 4,951 votes
or more than what he actually obtained. In resolving the case we
ruled that the correction of the manifest mistake in mathematical
addition calls for a mere clerical task of the board of canvassers.
The remedy invoked was purely administrative. In Feliciano v. Lugay
[13] we categorized the issue concerning registration of voters,
which Canicosa cited as a ground in his petition for declaration of
failure of election, as an administrative question. Likewise,
questions as to whether elections have been held or whether certain
returns were falsified or manufactured and therefore should be
excluded from the canvass do not involve the right to vote. Such
questions are properly within the
administrative jurisdiction of COMELEC, [14] hence, may be acted
upon
directly by the COMELEC en banc without having to pass through
any of its divisions.
WHEREFORE, finding no grave abuse of discretion committed by
public respondent Commission on Elections, the petition is
DISMISSED and its Resolution en bancof 23 May 1995 dismissing the
petition before it on the ground that the allegations therein did
not justify a declaration of failure of election is AFFIRMED.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Puno, Vitug,
Kapunan, Francisco, Panganiban, and Martinez, JJ., concur.
Mendoza, J., on leave.
-
EN BANC
[G.R. No. 134096. March 3, 1999]
JOSEPH PETER S. SISON, petitioner, vs. COMMISSION ON
ELECTIONS, respondents.
D E C I S I O N
ROMERO, J.:
Before this Court is a petition for certiorari under Rule 65 of
the Revised Rules of Court
which impugns the Resolution[1] of public respondent Commission
on Elections (COMELEC)
dated June 22, 1998 that dismissed petitioner Joseph Peter S.
Sison's earlier petition[2] in SPC No.
98-134, entitled In the Matter of the Petition to Suspend the
Canvassing of Votes and/or
Proclamation in Quezon City and to Declare a Failure of
Elections.
It appears that while the election returns were being canvassed
by the Quezon City Board of
Canvassers but before the winning candidates were proclaimed,
petitioner commenced suit
before the COMELEC by filing a petition seeking to suspend the
canvassing of votes and/or
proclamation in Quezon City and to declare a failure of
elections. The said petition was
supposedly filed pursuant to Section 6[3] of the Omnibus
Election Code (Batas Pambansa Blg.
881, as amended) on the ground of massive and orchestrated fraud
and acts analogous thereto
which occurred after the voting and during the preparation of
election returns and in the custody
or canvass thereof, which resulted in a failure to elect.[4]
In support of his allegation of massive and orchestrated fraud,
petitioner cited specific
instances which are summarized and set forth below:
1. The Board of Canvassers announced that election returns with
no inner seal would be
included in the canvass;
2. Board of Election Inspectors brought home copies of election
returns meant for the City
Board of Canvassers;
3. Petitioner, through counsel, raised written objections to the
inclusion in the canvass of
election returns which were either tampered with, altered or
falsified, or otherwise not
authentic;
4. According to the minutes of the City Board of Canvassers,
there were precincts with missing
election returns;
5. Several election returns with no data on the number of votes
cast for vice mayoralty position;
6. Highly suspicious persons sneaking in some election returns
and documents into the
canvassing area;
-
7. Concerned citizen found minutes of the counting, keys, locks
and metal seal in the
COMELEC area for disposal as trash;
8. Board of Election Inspectors have volunteered information
that they placed the copy of the
election returns meant for the City Board of Canvassers in the
ballot boxes deposited with the
City Treasurer allegedly due to fatigue and lack of sleep;
9. Ballot boxes were never in the custody of the COMELEC and
neither the parties nor their
watchers were allowed to enter the restricted area where these
boxes passed through on the way
to the basement of the City Hall where they were supposedly
kept; and
10. In the elections in Barangay New Era, there was a clear
pattern of voting which would show
that the election returns were manufactured and that no actual
voting by duly qualified voters
took place therein.
While the petition was pending before the COMELEC, the City
Board of Canvassers
proclaimed the winners of the elections in Quezon City,
including the winning candidate for the
post of vice mayor. On June 22, 1998, the COMELEC promulgated
its challenged resolution
dismissing the petition before it on the ground (1) that the
allegations therein were not supported
by sufficient evidence, and (2) that the grounds recited were
not among the pre-proclamation
issues set fourth in Section 17 of Republic Act No. 7166.[5]
Hence, this petition.
Alleging that COMELEC overstepped the limits of reasonable
exercise of discretion in
dismissing SPC No. 98-134, petitioner argues in the main that
the electoral body failed to afford
him basic due process, that is, the right to a hearing and
presentation of evidence before ruling on
his petition. He then proceeded to argue that the election
returns themselves, as well as the
minutes of the canvassing committee of the City Board of
Canvassers were, by themselves,
sufficient evidence to support the petition.
Upon a meticulous study of the parties arguments together with
the pertinent statutory
provisions and jurisprudence, this Court is of the opinion that
there is no compelling reason why
we should withhold our imprimatur from the questioned
resolution.
At the outset, we notice that petitioner exhibits an ambivalent
stand as to what exactly is the
nature of the remedy he availed of at the time he initiated
proceedings before the COMELEC in
SPC No. 98-134. At the start, he anchors his initiatory petition
under Section 6[6] of the Omnibus
Election Code regarding failure of elections but he later builds
his case as a pre-proclamation
controversy which is covered by Sections 241-248 of the Omnibus
Election Code, as amended
by R.A. No. 7166.[7] In this respect, the rule is, what
conjointly determine the nature of a pleading
are the allegations therein made in good faith, the stage of the
proceeding at which it is filed, and
the primary objective of the party filing the same.
In any case, petitioner nonetheless cannot succeed in either of
the remedies he opted to
pursue. Recently, in Matalam v. Commission on Elections,[8] we
have already declared that a
pre-proclamation controversy is not the same as an action for
annulment of election results or
declaration of failure of elections, founded as they are on
different grounds.
Under the pertinent codal provision of the Omnibus Election
Code, there are only three (3)
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; (b) the election in any polling place
had been suspendedbefore the
hour fixed by law for the closing of the voting on account of
force majeure, violence, terrorism,
fraud, or other analogous causes; 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.[9] (Underscoring supplied) We have painstakingly
examined petitioners petition before
the COMELEC but found nothing therein that could support an
action for declaration of failure
of elections. He never alleged at all that elections were either
not held or
suspended. Furthermore, petitioners claim of failure to elect
stood as a bare conclusion bereft of
any substantive support to describe just exactly how the failure
to elect came about.
With respect to pre-proclamation controversy, it is well to note
that the scope of pre-
proclamation controversy is only limited to the issues
enumerated under Section 243[10] of the
Omnibus Election Code, and the enumeration therein is
restrictive and exclusive.[11] The reason
underlying the delimitation both of substantive ground and
procedure is the policy of the election
law that pre-proclamation controversies should be summarily
decided, consistent with the law's
desire that the canvass and proclamation be delayed as little as
possible.[12] That is why such
questions which require more deliberate and necessarily longer
consideration, are left for
examination in the corresponding election protest.[13]
However, with the proclamation of the winning candidate for the
position contested, the
question of whether the petition raised issues proper for a
pre-proclamation controversy is
already of no consequence since the well-entrench rule in such
situation is that a pre-
proclamation case before the COMELEC is no longer viable, the
more appropriate remedies
being a regular election protest or a petition for quo
warranto.[14] We have carefully reviewed all
recognized exceptions[15] to the foregoing rule but found
nothing that could possibly apply to the
instant case based on the recitations of the petition. What is
more, in paragraph 3 of the
COMELECs Omnibus Resolution No. 3049 (Omnibus Resolution on
Pending Cases) dated June
29, 1998, it is clearly stated therein that All other
pre-proclamation cases x x x shall be deemed
terminated pursuant to Section 16, R. A. 7166.[16] (Underscoring
supplied). Section 16 which is
referred to in the aforecited omnibus resolution refers to the
termination of pre-proclamation
cases when the term of the office involved has already begun,
which is precisely what obtains
here. We are, of course, aware that petitioner cites the said
omnibus resolution in maintaining
that his petition is one of those cases which should have
remained active pursuant to paragraph 4
thereof. That exception, however, operates only when what is
involved is not a pre-proclamation
controversy such as petitions for disqualification, failure of
elections or analogous cases.But as
we have earlier declared, his petition, though assuming to seek
a declaration of failure of
elections, is actually a case of pre-proclamation controversy
and, hence, not falling within the
ambit of the exception. In any case, that omnibus resolution
would not have been applied in the
first place because that was issued posterior to the date when
the herein challenge resolution was
promulgated which is June 22, 1998. There was no provision that
such omnibus resolution
should have retroactive effect.
Finally, as to petitioners claim that he was deprived of his
right to due process in that he was
not allowed to present his evidence before the COMELEC to
support his petition, the same must
likewise fail.
-
First, we note that his citation of Section 242 of the Omnibus
Election Code as basis for his
right to present evidence is misplaced. The phrase after due
notice refers only to a situation
where the COMELEC decides and, in fact, takes steps to either
partially or totally suspend or
annul the proclamation of any candidate-elect. Verba legis non
est recedendum. From the words
of the statute there should be no departure. The statutory
provision cannot be expanded to
embrace any other situation not contemplated therein such as the
one at bar where the
COMELEC is not taking any step to suspend or annul a
proclamation.
Second, presentation of evidence before the COMELEC is not at
all indispensable in order
to satisfy the demands of due process. Under the amendment
introduced by R.A. No. 7166,
particularly Section 18 thereof, all that is required now is
that the COMELEC shall dispose of
pre-proclamation controversies on the basis of the records and
evidence elevated to it by the
board of canvassers. This is but in keeping with the policy of
the law that cases of this nature
should be summarily decided and the will of the electorate as
reflected on the election returns be
determined as speedily as possible. What exactly those records
and evidence are upon which the
COMELEC based its resolution and how they have been appreciated
in respect of their
sufficiency, are beyond this Courts scrutiny. But we have reason
to believe, owing to the
presumption of regularity of performance of official duty and
the precept that factual findings of
the COMELEC based on its assessments and duly supported by
gathered evidence, are
conclusive upon the court, that the COMELEC did arrive at its
conclusion with due regard to the
available evidence before it. That this is so can, in fact, be
gleaned from petitioners own
allegation and admission in his petition that the