x x x xx x x x
- That on July 15, 2002 at around 10:30 o' clock in the morning, the casting of votes in the above named precinct was commenced at its designated Polling Place in Cayagan Elementary School and while only ten (10) voters had actually voted, a certain ALIPECRY ACOP GAFFAR, who is the son of respondent Punong Barangay candidate ABDULGAFFAR DIBARATUN got inside the polling place and was caught in possession of Three (3) filled up ballots where candidate ABDULGAFFAR DIBARATUN were voted which he wanted to place or insert inside the ballot box for official (sic).
- That when said ALIPECRY GAFFAR was confronted by the petitioner's watcher and other watchers confronted him of said official ballots, he got mad and flared up and committed violence which disrupted and stopped the casting of votes and because of the commotion, the chairman left the ballot box which was held by the companions of Alipecry Acop Gaffar and destroyed the said ballot box, took the official ballot contained therein and inserted, placed therein a bundle of substituted ballots.
- That due to the facts adverted to above, the casting of votes was stopped and it was never resumed nor continued. Only Ten (10) voters had actually voted out of One Hundred Fifty One (151) registered voters.
- That even candidates for Barangay Chairmen and Barangay Kagawad were unable to cast their votes because the casting of votes was illegally disturbed, disrupted, interrupted and stopped by Alipecry Acop Gaffar despite the presence of numerous registered voters ready to cast their votes.
- The Election Officer knowing fully that there was really a failure of election in the said precinct recommended that a special election be called for the said precinct.
- That unknown to the petitioner, the respondent Board of Election Inspectors, in conspiracy and connivance with respondent - Abdulgaffar Dibaratun, surreptitiously and clandestinely canvassed the election returns and then illegally proclaimed the respondent Abdulgaffar Dibaratun and issued Certificate of Canvass of Votes and Proclamation of Winning Candidates dated July 16, 2002 which was ant[e]dated xerox copy of which is hereto attached as Annex "C" hereof.5
WHEREFORE, premises considered, the Commission (en banc) RESOLVED, as it hereby RESOLVES, to GIVE DUE COURSE to the instant petition.
ACCORDINGLY, the proclamation of respondent Abdulgaffar P.M. Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid, Tugaya, Lanao del Sur is hereby ANNULLED and he is thus ORDERED to CEASE AND DESIST from exercising the powers and responsibilities of the said office. Pending the conduct of the special elections yet to be scheduled by this Commission and until no Punong Barangay has been duly elected and qualified, the incumbent Punong Barangay shall continue to exercise the powers and duties of such office in a hold-over capacity in accordance with Section 5 of R.A. No. 9164 (An Act Providing for Synchronized Barangay and Sangguniang Kabataan Elections, Amending Republic Act No. 7160, As Amended, Otherwise Known as The 'Local Government Code of 1991,' and For Other Purposes).
Let the Office of the Deputy Executive Director for Operations (ODEDO), this Commission, furnish a copy of this Resolution to the Provincial Election Supervisor of Lanao del Sur for the implementation of the same upon its finality.6
1) The COMELEC en banc gravely abused its discretion amounting to lack or excess of jurisdiction when it unjustly gave due course to the unmeritorious petition of respondent Abubakar for the simple reason that it was filed out of time and the validity of the proclamation of petitioner Dibaratun on July 16, 2002 can no longer be legally assailed after the expiration of ten (10) days.
2) Private respondent Abubakar is estopped to assert whatever rights he has in the election laws/rules of procedure when he desparately failed to make the proper objections during the casting, counting and canvassing of votes, and, therefore, the COMELEC en banc gravely abused its discretion amounting to lack or excess of jurisdiction when it erroneously heard and considered the unmeritorious petition of respondent Abubakar.
3) Public respondent COMELEC en banc gravely abused its discretion amounting to lack or excess of jurisdiction when it erroneously declared failure of elections in Precinct No. 6A/7A of Barangay Bagoainguid, Tugaya, Lanao del Sur and called for special elections in the said precinct.7
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.
(1) 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;
(2) 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
(3) 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.
The letter of Mayor Abdul Jabbar Mangawan A.P. Balindong, Municipal Mayor of Tugaya, Lanao Del Sur, addressed to Chairman Benjamin Abalos, Sr., the Joint Affidavit of Norhata M. Ansari and Sahara T. Guimba, Poll Clerk and Third Member, respectively, of the Board of Election Inspectors of Precinct No. 6A/7A of Barangay Bagoainguid and the Joint Affidavit of PO1 Yahya M. Dirindigun and PO1 Casary C. Modasir all state that it is the petitioner and his relatives and followers who started the violence that caused the suspension of the voting.
Meanwhile, the affidavits submitted by the witnesses of the petitioner all state that it is respondent Dibaratun and his followers and relatives who were the cause of the violence which resulted in the suspension of the election after only ten (10) people managed to vote.12
SEC. 4. Postponement, Failure of Elections and Special Elections.--The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election.19
- Illegal composition or proceedings of the board of canvassers;
- The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of the Omnibus Election Code;
- The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and
- When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.21
Endnotes:
1 Under Rule 64 in relation to Rule 65 of the Rules of Court.
2 Also spelled as "Abdulgaffar" in the COMELEC Resolution dated October 17, 2005.
3 Also spelled as "Abubacar" in the COMELEC Resolution dated October 17, 2005.
4 Entitled Abdulcarim Mala Abubacar v. Board of Election Inspectors/Tellers of Precinct No. 6A/7A, Barangay Bagoainguid, Tugaya, Lanao del Sur.
5 COMELEC Resolution dated October 17, 2005, rollo, pp. 32-33.
6 Rollo, pp. 35-36.
7 Id. at 15-16.
8 Soliva v. Commission on Elections, G.R. No. 141723, April 20, 2001, 357 SCRA 336.
9 G.R. No. 134696, July 31, 2000, 336 SCRA 701.
10 Id.
11 Id.
12 Rollo, p. 34.
13 Id. at 35.
14 Immam v. Commission on Elections, G.R. No. 134167, January 20, 2000, 322 SCRA 866.
15 Matalam v. Commission on Elections, G.R. No. 123230, April 18, 1997, 271 SCRA 733.
16 Supra note 8.
17 Id.
18 An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes. Approved on November 26, 1991.
19 Emphasis supplied.
20 As amended by Sections 17 to 22 of R.A. No. 7166.
21 Supra note 15.
22 Borja, Jr. v. Commission on Elections, G.R. No. 120140, August 21, 1996, 260 SCRA 604.
23 Sec. 252. Election contest for barangay offices. - A sworn petition contesting the election of a barangay officer shall be filed with the proper municipal or metropolitan trial court by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the election. xxxx
24 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.
25 Rollo, p. 35.
26 Sangcopan v. Comelec, citing Land Bank of the Philippines v. Court of Appeals, G.R. No. 129368, August 25, 2003, 409 SCRA 455.