Failure of Elections

Special Elections

1. Grounds
2. Call of Special Elections

Read:

1. Secs. 6 – 7, Article I, Omnibus Election Code;

2. Sison v. COMELEC, G.R. No. 134096, March 3, 1999;
3. Ampatuan v. COMELEC, 375 SCRA 503;
4. Bao v. COMELEC, 418 SCRA 469;
5. Pangandaman v. COMELEC, 319 SCRA 283

Section 6 Failure of election. If, on account of force majeure, violence,

terrorism, fraud, or other analogous causes the election in any polling place
has not been held on the date fixed, or had been suspended before the
hour fixed by law for the closing of the voting, or after the voting and during
the preparation and the transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect, and in
any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and hearing, call for
the holding or continuation of the election not held, suspended or which
resulted in a failure to elect 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.

Section 7 Call of special election. -

(1) In case a vacancy arises in the Batasang Pambansa eighteen months

or more before a regular election, the Commission shall call a special
election to be held within sixty days after the vacancy occurs to elect the
Member to serve the unexpired term.

(2) In case of the dissolution of the Batasang Pambansa, the President

shall call an election which shall not be held earlier than forty-five nor later
than sixty days from the date of such dissolution.
The Commission shall send sufficient copies of its resolution for the holding
of the election to its provincial election supervisors and election registrars
for dissemination, who shall post copies thereof in at least three
conspicuous places preferably where public meetings are held in each city
or municipality affected.

JURISPRUDENCE:

SISON vs. COMELEC

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:
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;
xxx
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]
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.
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 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 electionresults in
a failure to elect on account of force majeure, violence, terrorism , fraud, or
other analogous causes.[9]
We have painstakingly examined petitioner‘s 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, petitioner‘s 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.
AMPATUAN VS COMELEC

Ampatuan and Respondent Candao were candidates for the position of

Governor of Maguindanao during the 2001 elections ^
May 2001: respondents filed a petition with the comelec for the
annulment of election results and/or declaration of failure of elections in
several municipalities. They claimed that the elections were ―completely
sham and farcical‖. The ballots were filled-up en masse by a few persons
the night before the election day, and in some precincts, the ballot boxes,
official ballots and other election paraphernalia were not delivered at all. ^
Comelec suspended proclamation of winning candidates ^ Petitioners filed
a motion to lift suspension of proclamation. Comelec granted and
proclaimed the petitioners s winners.
^ June 2001: Respondents filed with SC a petition to set aside
Comelec order and prelim injunction to suspend effects of the proclamation
of petitioners.
^ July 2001: Comelec ordered the consolidation of the respondents‘
petition for declaration of failure of elections.
^ Sept 2001: Petitioners filed the present petition and claimed that by
virtue of the proclamation, the proper remedy available to the respondents
was not petition for declaration of failure of elections but an election protest.
The former is heard summarily while the latter involves a full-blown trial.
^ Oct 2001: Comelec ordered the suspension of the 2 assailed orders
(with regard to respondents‘ petition for failure of elections and directing the
continuation of hearing and disposition of the consolidated SPAs on the
failure of elections and other incidents related thereto)

The main issue to be resolved is whether the Commission on Elections

was divested of its jurisdiction to hear and decide respondents‘ petition for
declaration of failure of elections after petitioners had been proclaimed.
We deny the petition.
Petitioners submit that by virtue of their proclamation as winners, the
only remedy left for private respondents is to file an election protest, in
which case, original jurisdiction lies with the regular courts. Petitioners cited
several rulings that an election protest is the proper remedy for a losing
candidate after the proclamation of the winning candidate.[25]
 However, the authorities petitioners relied upon involved pre-
proclamation controversies. In Loong v. Commission on Elections,[26] we
ruled that ―a pre-proclamation controversy is not the same as an action for
annulment of election results, or failure of elections.‖ These two remedies
were more specifically distinguished in this wise:

―While, however, the Comelec is restricted, in pre-proclamation cases, to

an examination of the election returns on their face and is without
jurisdiction to go beyond or behind them and investigate election
irregularities, the Comelec is duty bound to investigate allegations of fraud,
terrorism, violence, and other analogous causes in actions for annulment of
election results or for declaration of failure of elections, as the Omnibus
Election Code denominates the same. Thus, the Comelec, in the case of
actions for annulment of election results or declaration of failure of
elections, may conduct technical examination of election documents
and compare and analyze voters’ signatures and thumbprints in order
to determine whether or not the elections had indeed been free, honest and
clean.‖[27]

The fact that a candidate proclaimed has assumed office does not
deprive the Comelec of its authority to annul any canvass and illegal
proclamation.[28] In the case at bar, we cannot assume that petitioners‘
proclamation and assumption into office on June 30, 2001, was legal
precisely because the conduct by which the elections were held was put in
issue by respondents in their petition for annulment of election results
and/or declaration of failure of elections.
Respondents‘ allegation of massive fraud and terrorism that attended
the May 14, 2001 election in the affected municipalities cannot be taken
lightly as to warrant the dismissal of their petition by the Comelec on the
simple pretext that petitioners had been proclaimed winners. We are not
unmindful of the fact that ―a pattern of conduct observed in past elections
has been the pernicious ‗grab-the-proclamation-prolong-the-protest‘ slogan
of some candidates or parties‖ such that even if the protestant wins, it
becomes ―a mere pyrrhic victory, i.e., a vindication when the term of office
is about to expire or has expired.‖ xxx ―We have but to reiterate the oft-cited
rule that the validity of a proclamation may be challenged even after the
irregularly proclaimed candidate has assumed office.‖[29]
Petitioners likewise rely on the case of Typoco, Jr. v. Commission on
Elections.[30] This Court held that Comelec committed no grave abuse of
discretion in dismissing a petition for declaration of failure of elections.
However, we made a pronouncement that the dismissal was proper since
the allegations in the petition did not justify a declaration of failure of
elections. ―Typoco‘s relief was for Comelec to order a recount of the votes
cast, on account of the falsified election returns, which is properly the
subject of an election contest.”[31]
Respondents‘ petition for declaration of failure of elections, from which
the present case arose, exhaustively alleged massive fraud and terrorism
that, if proven, could warrant a declaration of failure of elections. Thus:

―4.1. The ‘elections’ in at least eight (8) other municipalities xxx were
completely sham and farcical. There was a total failure of elections in these
municipalities, in that in most of these municipalities, no actual voting was
done by the real, legitimate voters on election day itself but ‘voting’ was
made only by few persons who prepared in advance, and en masse, the
ballots the day or the night before election and, in many precincts, there
was completely no voting because of the non-delivery of ballot boxes,
official ballots and other election paraphernalia; and in certain
municipalities, while some semblance of ‗voting‘ was conducted on election
day, there was widespread fraudulent counting and/or counting under very
irregular circumstances and/or tampering and manufacture of election
returns which completely bastardized the sovereign will of the people.
These illegal and fraudulent acts of desecration of the electoral process
were perpetrated to favor and benefit respondents. These acts were, by
and large, committed with the aid and/or direct participation of military
elements who were deployed to harass, intimidate or coerce voters and the
supporters or constituents of herein petitioners, principally, of re-
electionist Governor Datu Zacaria Candao. Military units and personnel
visibly, openly and flagrantly violated election laws and regulations by
escorting people or elements engaged in the illegal, advanced preparation
of ballots and election returns and, at times, manning the polling places or
precincts themselves and/or staying within the prohibited radius. Ballot
boxes and other election paraphernalia were brought not to the precincts or
voting centers concerned but somewhere else where massive manufacture
of ballots and election documents were perpetrated.‖[32]

The Comelec en banc has the authority to annul election results and/or
declare a failure of elections.[33] Section 6 of the Omnibus Election Code
further provides that:
―Section 6. Failure of election.- If, on account of force majeure, violence,
terrorism, fraud, or other analogous causes the election in any polling place
has not been held on the date fixed, or had been suspended before the
hour fixed by law for the closing of the voting, or after the voting and during
the preparation and the transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect, and in
any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and hearing, call for
the holding or continuation of the election not held, suspended or which
resulted in a failure to elect but not later than thirty days after the cessation
of the cause of such postponement or suspension of the election of failure
to elect.‖

Elucidating on the concept of failure of election, we held that:

―xxx before Comelec can act on a verified petition seeking to declare a

failure of election, two (2) conditions must concur: first, no voting has taken
place in the precincts concerned on the date fixed by law or, even if there
was voting, the election nevertheless resulted in a failure to elect; and
second, the votes cast would affect the result of the election. In Loong vs.
Commission on Elections, this Court added that the cause of such failure of
election should have been any of the following: force majeure, violence,
terrorism, fraud or other analogous cases.‖[34]

In another case, we ruled that ―while it may be true that election did take
place, the irregularities that marred the counting of votes and the
canvassing of the election returns resulted in a failure to elect.‖[35]

BAO VS COMELEC

Petitioner Sangcad S. Bao sought re-election as mayor of Butig, Lanao del

Sur in the May 14, 2001 elections.

On May 25, 2001, petitioner filed before the COMELEC a Very Urgent
Petition for Suspension of Counting of Votes by [the] B[oard of] E[lection]
I[nspectors], Canvass of Election Returns and Proclamation of Winners by
[the Municipal Board of Canvassers], and Declaration of Failure of Election
in Butig, Lanao del Sur
Petitioner later filed on May 29, 2001 an Additional Submission2 containing
Casidars Narrative Report on the Conduct of [the] May 14, 2001 National
and Local Elections in the Municipality of Butig, Lanao del
Sur3 reading verbatim:

xxx

1. Per my instruction, the BEIs immediately started the election.

2. while the election was going on, at around 2 pm, several bombings
occurred almost in the area where the election was held which caused
commotion.

3. due to the incident and fear, the BEIs assigned in some other
precincts locked their ballot boxes and brought them to the
Municipal Hall while others continued the casting of votes [until]
the last hour.

4. . . . the electors and some other candidates were forcing and/or

convincing me to open the ballot boxes brought to the Municipal
Hall to continue the election which I refused as it was already
too late.

5. . . . due to intimidation and force shown or displayed by some of the

supporters and candidates themselves, I failed to decide on time as it will
endanger my life and other civilians in the area.

xxx

On June 4, 2001, petitioner filed a Very Urgent Motion to Defer Canvass of

Election Returns and Suspend Proclamation,[4reiterating the arguments in
his previous petition.

On June 8, 2001, Langco (petitioner-intervenor), filed a petition-in-

intervention[5 adopting the allegations of petitioner and further alleging the
occurrence of other irregularities during the conduct of the elections, to wit:

1. watchers were not allowed to escort the ballot boxes and witness the
distribution of ballots;
2. a member of the Philippine Army was putting inside the ballot box official
ballots already filled up;

3. around 11:20 a.m., there were simultaneous explosions causing the

voters to scamper away which resulted to low voter turn-out;

4. the casting of votes was stopped at 1:30 p.m.;

5. the clustering made by the COMELEC based on the convenience and

safety of the voters was not followed;

6. the casting of votes was done in public as there were no voting booths;

xxx

WHETHER OR NOT RESPONDENT COMMISSION ON ELECTIONS

ILLEGALLY OR ARBITRARILY RESOLVED TO DENY THE PETITION OF
BAO AND INTERVENOR LANGCO AND ROMATO, THAT THEIR
ALLEGATIONS AND EVIDENCES ATTACHED TO THEIR PLEADINGS
ARE INSUFFICIENT TO DECLARE FAILURE OF
ELECTION.10 (Underscoring omitted)

Petitioner contends that SPA No. 01-336 being a contentious case, the
COMELEC acts as a quasi-judicial tribunal and thus falls under the term
court; that the questioned resolution failed to express clearly and distinctly
the facts and the law on which it is based in contravention of Article VII of
the 1987 Constitution;[11 that contrary to the findings of the COMELEC, the
two (2) conditions set forth in Mitmug v. COMELEC[12] to declare a failure
of election was present in the instant case; and that the serious and
massive election irregularities in thirty out of forty precincts in Butig were
more than sufficient to affect the election results as they disenfranchised
more than 70% of the registered voters.13

Petitioner further contends that even if there was voting, the election
nevertheless resulted in failure to elect;14that the COMELEC erred in not
giving credence to the official Narrative Report of Casidar which contained
facts affecting the validity of the elections;15 and that in failing to conduct
summary hearing for the reception of evidence, the COMELEC violated the
Omnibus Election Code and its own rules.16
The issue in the main is whether the COMELEC committed grave abuse of
discretion in not declaring a failure of election.

This Court holds in the negative.

Section 6 of the Omnibus Election Code provides:

Section 6. Failure of Election. - If, on account of force majeure, violence,

terrorism, fraud, or other analogous causes the election in any polling place
has not been held on the date fixed, or had been suspended before the
hour fixed by law for the closing of the voting, or after the voting and during
the preparation and the transmission of the election returns or in the
custody or canvass thereof, such election results in 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.

In Mitmug v. COMELEC,[17] this Court held that before the COMELEC can
act on a verified petition seeking to declare a failure of election, two (2)
conditions must concur: first, no voting has taken place in the precinct or
precincts on the date fixed by law or, even if there was voting, the election
nevertheless results in failure to elect; and second, the votes not cast
would affect the result of the election.

And in Typoco v. COMELEC ,18 this Court held:

Clearly then, there are only three instances where a failure of election 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
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; (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 failure to elect on account of force rnajeure, violence, terrorism,
fraud, or other analogous causes. In all instances there must have been a
failure to elect; this is obvious in the first scenario, where the election was
not held and second where the election was suspended. As to the third
scenario, the preparation and transmission of election returns which give
rise to the consequence of failure to elect must as aforesaid be literally
interpreted to mean that nobody emerged as winner.

In the present case, the allegations-bases of both the petition and Langcos
petition-in-intervention before the COMELEC are mostly grounds for an
election contest, not for a declaration of failure of election. While there are
allegations which may be grounds for failure of election, they are supported
by mere affidavits and the narrative report of the election officer. That
petitioner and petitioner-intervenor were not able to present substantial
evidence in support of their allegations should not be blamed on the
COMELEC, for during the June 28, 2001 hearing, Atty. Jose Ventura
Aspiras, collaborating counsel for petitioner, on being informed that
respondent Pansar had not yet received the summons to necessitate the
resetting of the hearing, made a request, which was granted, that said
respondent should just file an answer or memorandum to abbreviate the
proceedings, and did not object to the COMELECs pronouncement to
consider the petition submitted for resolution after the filing of the answer or
memorandum.

Thus, there can be no other recourse for this Commission than to deny the
petition. General allegations, without sufficient evidentiary support, do
not warrant a declaration of a failure of elections. Election results are
the expression of the will of the people whose welfare and interests must
immediately be served by those upon whom the people have placed their
trust. Peripherally but not trivially, elections need be consummated with
dispatch because the losers or even those just lagging behind in the
counting, more often than not, file all kinds of protests and complaints and
objections that delay the election process and threaten to deny the people
their representation in government.20

G.R. No. 134340 November 25, 1999

PANGANDAMAN VS COMELEC
Recently, this Court emphatically stated that "[U]pholding the sovereignty of
the people is what democracy is all about. When the sovereignty of the
people expressed thru the ballot is at stake, it is not enough for this Court
to make a statement but it should do everything to have that sovereignty
obeyed by all. Well done is always better than well said." 1 Corollarily, laws
and statutes governing election contests especially the appreciation of
ballots must be liberally construed to the end that the will of the electorate
in the choice of public officials may not be defeated by technical
infirmities. 2 These standards will be the legal matrix within which this
controversy will be adjudged.

Challenged in this petition for certiorari and prohibition with prayer for
temporary restraining order and preliminary injunction is the Omnibus
Order of the Commission on Elections (COMELEC) en banc dated July 14,
1998, 3 the dispositive portion of which reads as follows:

WHEREFORE, premises considered, special elections for the

municipalities, namely

Butig Lumbayabague

Kapatagan Sultan Dumalondong

Maguing Sultan Gumander

Masiu Marawi City

Lumbabayabao

shall be held on 18 July 1998.

Special elections shall also be held on July 25, 1998 for the
municipalities of

Ganassi Lumbatan

Malabang Pagayawan

Marantao Tubaran
Petitioner asserts that the COMELEC acted with grave abuse of discretion
amounting to lack of jurisdiction in issuing the assailed Omnibus Order —

1.] By insisting on holding special elections on July 18 and 25,

1998 more than thirty (30) days after the failure to elect, in
certain municipalities, in contravention of the clear and explicit
provisions of Section 6 of the Omnibus Election Code;

In support of his cause, petitioner insists on a strict compliance with the

holding of special elections not later than thirty (30) days after failure to
elect pursuant to Section 6 of the Omnibus Election Code which provides
that:

Sec. 6. Failure of elections. — 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 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.

Petitioner argues that the above-quoted provision is mandatory

because of the word "shall". He further asserts that the prescribed
time frame actually "delimits" COMELEC's authority to call for a
special election and that instead, the power to call for a special
election after the 30th day now resides in Congress.

The provision invoked can not be construed in the manner as argued by

petitioner for it would defeat the purpose and spirit for which the law was
enacted.
It is a basic precept in statutory construction that a statute should be
interpreted in harmony with the Constitution and that the spirit, rather than
the letter of the law determines its construction; for that reason, a statute
must be read according to its spirit and intent. 4 Thus, a too literal
interpretation of the law that would lead to absurdity prompted this Court to
—

Sec. 2 (1) of Article IX (C) of the Constitution gives the COMELEC the
broad power to "enforce and administer all laws and regulations relative to
the conduct of an election, plebiscite initiative, referendum and recall."
There can hardly be any doubt that the text and intent of this constitutional
provision is to give COMELEC all the necessary and incidental powers for it
to achieve the objective of holding free, orderly, honest, peaceful and
credible elections.

In fixing the date for special elections the COMELEC should see to it that:
1.] it should not be later than thirty (30) days after the cessation of the
cause of the postponement or suspension of the election or the failure to
elect; and, 2.] it should be reasonably close to the date of the election not
held, suspended or which resulted in the failure to elect. The first involves a
question of fact. The second must be determined in the light of the peculiar
circumstances of a case. 10 Thus, the holding of elections within the next
few months from the cessation of the cause of the postponement,
suspension or failure to elect may still be considered "reasonably close to
the date of the election not held." 11

In this case, the COMELEC can hardly be faulted for tardiness. The dates
set for the special elections were actually the nearest dates from the time
total/partial failure of elections was determined, which date fell on July 14,
1998, the date of promulgation of the challenged Omnibus Order. Needless
to state, July 18 and 25, the dates chosen by the COMELEC for the holding
of special elections were only a few days away from the time a total/partial
failure of elections was declared and, thus, these were "dates reasonably
close" thereto, given the prevailing facts herein. Furthermore, it bears
stressing that in the exercise of the plenitude of its powers to protect the
integrity of elections, the COMELEC should not and must not be
straitjacketed by procedural rules in the exercise of its discretion to resolve
election disputes. 12