EN BANC

[G.R. No. 209185. October 25, 2013.]

MARC DOUGLAS IV C. CAGAS, petitioner, vs. COMMISSION ON

ELECTIONS, represented by its CHAIRMAN, and ATTY. SIXTO
BRILLANTES, JR., and the PROVINCIAL ELECTION OFFICER OF
DAVAO DEL SUR, represented by ATTY. MA. FEBES BARLAAN ,
respondents.

RESOLUTION

CARPIO, J : p

This Resolution resolves the Petition for Prohibition, 1 filed by Marc Douglas
IV C. Cagas (Cagas), in his capacity as taxpayer, to prohibit the Commission on
Elections (COMELEC) from conducting a plebiscite for the creation of the province
of Davao Occidental simultaneously with the 28 October 2013 Barangay Elections
within the whole province of Davao del Sur, except in Davao City.
Cagas, while he was representative of the first legislative district of Davao
del Sur, filed with Hon. Franklin Bautista, then representative of the second
legislative district of the same province, House Bill No. 4451 (H.B. No. 4451), a
bill creating the province of Davao Occidental. H.B. No. 4451 was signed into law
as Republic Act No. 10360 (R.A. No. 10360), the Charter of the Province of Davao
Occidental.
Sections 2 and 7 of R.A. No. 10360 provide for the composition of the new
provinces of Davao Occidental and Davao del Sur:
Sec. 2. Province of Davao Occidental. — There is hereby created a
new province from the present Province of Davao del Sur to be known as the
Province of Davao Occidental, consisting of the municipalities of Sta. Maria,
Malita, Don Marcelino, Jose Abad Santos and Sarangani. The territorial
jurisdiction of the Province of Davao Occidental shall be within the present
metes and bounds of all the municipalities that comprise the Province of
Davao Occidental. ESCDHA

xxx xxx xxx

Sec. 7. Legislative District. — The Province of Davao Occidental
shall have its own legislative district to commence in the next national and
local elections after the effectivity of this Charter. Henceforth, the
municipalities of Sta. Maria, Malita, Don Marcelino, Jose Abad Santos and
Sarangani shall comprise the Lone Legislative District of the Province of
Davao Occidental while the City of Digos and the municipalities of Malalag,
Sulop, Kiblawan, Padada, Hagonoy, Sta. Cruz, Matanao, Bansalan and
Magsaysay shall comprise the Lone Legislative District of the Province of
Davao del Sur.
xxx xxx xxx
Section 46 of R.A. No. 10360 provides for the date of the holding of a
plebiscite.
Sec. 46. Plebiscite. — The Province of Davao Occidental shall be
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 created, as provided for in this Charter, upon approval by the majority of the
votes cast by the voters of the affected areas in a plebiscite to be conducted
and supervised by the Commission on Elections (COMELEC) within sixty (60)
days from the date of the effectivity of this Charter.
The amount necessary for the conduct of the plebiscite shall be borne
by the COMELEC.
R.A. No. 10360 was passed by the House of Representatives on 28
November 2012, and by the Senate on 5 December 2012. President Benigno S.
Aquino III approved R.A. No. 10360 on 14 January 2013. 2 R.A. No. 10360 was
published in The Philippine Star and the Manila Bulletin only on 21 January 2013.
Considering that R.A. No. 10360 shall take effect 15 days after its publication in at
least two newspapers of general and local circulation, 3 COMELEC, therefore, only
had until 6 April 2013 to conduct the plebiscite. 4 cEHITA

As early as 27 November 2012, prior to the effectivity of R.A. No. 10360, the
COMELEC suspended the conduct of all plebiscites as a matter of policy and in
view of the preparations for the 13 May 2013 National and Local Elections. 5 On 9
July 2013, the COMELEC extended the policy on suspension of the holding of
plebiscites by resolving to defer action on the holding of all plebiscites until after
the 28 October 2013 Barangay Elections. 6 During a meeting held on 31 July
2013, the COMELEC decided to hold the plebiscite for the creation of Davao
Occidental simultaneously with the 28 October 2013 Barangay Elections to save
on expenses. 7 The COMELEC, in Minute Resolution No. 13-0926, approved the
conduct of the Concept of Execution for the conduct of the plebiscite on 6 August
2013. 8 On 14 August 2013, Bartolome J. Sinocruz, Jr., the Deputy Executive
Director for Operations of the COMELEC, issued a memorandum furnishing a copy
of Minute Resolution No. 13-0926 to Atty. Remlane M. Tambuang, Regional
Election Director of Region XI; Atty. Ma. Febes M. Barlaan, Provincial Election
Supervisor of Davao del Sur; and to all election officers of Davao del Sur. On 6
September 2013, the COMELEC promulgated Resolution Nos. 9771 9 and 9772. 10
Resolution No. 9771 provided for the following calendar of activities:
DATE/PERIOD ACTIVITIES PROHIBITED ACTS

SEPT. 09, 2013 (MON) Last day to constitute the

Plebiscite Board of
Canvassers

SEPT. 28, 2013 (SAT)

PLEBISCITE PERIOD Bearing, carrying or
—
NOV 12, 2013 (TUE)
transporting firearms or
(30
DAYS BEFORE THE other deadly weapons in
DATE OF PLEBISCITE public places, including
AND 15 DAYS any building, street, park,
THEREAFTER private vehicle or public
conveyance, or even if
licensed to possess or
carry the same, unless
authorized in writing by
the Commission (Sec.
261 (p) (q) OEC, as
amended by Sec. 32, RA
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 7166);
Suspension of local
elective officials (Sec.
261 (x), OEC);
Transfer of officers and
employees in the civil
service (Sec. 261 (h),
OEC);
Alteration of territory of
a precinct or
establishment
of a new precinct (Sec. 5,
R.A. 8189);
Organizing or maintaining
reaction/strike forces or
similar forces (Sec. 261,
(u), OEC);
Illegal release of prisoners
(Sec. 261 (n), OEC);
Use of security personnel
or bodyguards by
candidates, whether or not
such bodyguards are
regular members or
officers of the Philippine
National Police or Armed
Forces of the Philippines or
other law enforcement
agency
(Sec. 261 (t), OEC,
as amended by Sec. 33,
RA
7166);
Release, disbursement or
expenditures of public
funds
(Sec. 261 (v), OEC);
Construction of public
works, delivery of
materials for public works
and issuance of treasury
warrants or similar
devices
for a future undertaking
chargeable against public
funds (Sec. 261, (w) OEC).

SEPTEMBER 28, 2013 INFORMATION Making any donation or

(SAT) to OCTOBER 26, CAMPAIGN PERIOD gift in cash or in kind, etc.
2013 (SAT) (Sec. 104, OEC);
Use of armored/land/
water/air craft. (Sec. 261
(r), OEC);
Appointing or using
special
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 policemen, special/
confidential agents or the
like. (Sec. 261 (m), OEC);
SEPTEMBER 28, 2013 Issuance of appointments,
(SAT) to OCTOBER 28, promotions, creation of
2013 (MON) new positions, or giving of
salary increases.

OCTOBER 27, 2013 EVE OF PLEBISCITE Campaigning (Sec. 3,

(SUN) DAY OEC);

Giving, accepting free

transportation, foods,
drinks, and things of value
(Sec. 89, OEC);
Selling, furnishing,
offering, buying, serving
or
taking intoxicating liquor
(Sec. 261 (dd), (1), OEC).
(NOTE: Acts mentioned in
the three (3) preceding
paragraphs are prohibited
until election day.)

OCTOBER 28, 2013 PLEBISCITE DAY Vote-buying and vote

(MON) selling (Sec. 261 (a),

Casting of votes- (from OEC);

7:00 a.m. to 3:00 p.m. Voting more than once or
simultaneous with the in substitution of another
voting for the Barangay (Sec. 261 (z) (2) and (3),
and SK Elections) OEC);
Campaigning (Sec. 3,
Counting of votes shall beOEC);
after the counting of
Soliciting votes or
votes
for Barangay and SK undertaking any
Elections) propaganda for or against
any candidate or any
Convening of the City political party within the
Plebiscite Board of polling place or within
Canvassers - (6:00 p.m.) thirty (30) meters thereof
(Sec. 261 (cc) (6), OEC);
Selling, furnishing,
offering, buying, serving
or
taking intoxicating liquor,
etc. (Sec. 261 (dd) (1),
OEC);
Opening of booths or stalls
for the sale, etc., of
wares,
merchandise or
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 refreshments,
within thirty (30) meters
radius from the polling
place.
(Sec. 261 (dd) (2) OEC);
Giving and/or accepting
free
transportation, food,
drinks
and things of value (Sec.
89,
OEC);
Holding of fairs,
cockfights, boxing, horse
races or similar sports.
(Sec. 261 (dd) (3), OEC).
Resolution No. 9772, on the other hand, provided that copies of R.A. No. 10360
be posted 11 and that information campaigns be conducted prior to the plebiscite.
12

On 9 October 2013, Cagas filed the present petition for prohibition. Cagas
cites three causes of action:
1. COMELEC is without authority or legal basis to AMEND or MODIFY
Section 46 of Republic Act No. 10360 by mere MINUTE RESOLUTION
because it is only CONGRESS who can validly amend, repel [sic ] or modify
existing laws, thus COMELEC [sic ] act in suspending the holding of a
plebiscite is unconstitutional; 13
2. COMELEC is without authority or legal basis to hold a plebiscite this
coming October 28, 2013 for the creation of the Province of Davao
Occidental because Section 46 of Republic Act [No.] 10360 has already
lapsed; 14 and
3. Petitioner has no other adequate remedy to prevent the COMELEC
from holding the Plebiscite on October 28, 2013 for the creation of the
Province of Davao Occidental except through the issuance of Temporary
Restraining Order and Preliminary Injunction because COMELEC had
already commenced the preparation for holding of the Plebiscite for the
creation of the Province of [Davao] Occidental synchronizing it with that of
the Barangay and SK elections this coming October 28, 2013. 15 cHaICD

On 17 October 2013, we issued a Resolution requiring respondents

COMELEC, represented by its Chairperson, Hon. Sixto Brillantes, Jr., and the
Provincial Election Officer of Davao del Sur, represented by Atty. Ma. Febes
Barlaan, to file their comment to Cagas' petition not later than 21 October 2013.
The respondents, through the Office of the Solicitor General (OSG), filed
their comment on 21 October 2013. The OSG raises the following arguments:
1. The 1987 Constitution does not fix the period to hold a plebiscite for
the creation of a local government unit;
2. There was logistical and financial impossibility for the COMELEC to
hold a plebiscite at a mere two months' notice;
3. Legislative intent is for R.A. No. 10360 to be implemented;
4. Public interest demands that the plebiscite be conducted; and
5. The COMELEC did not abuse its discretion in issuing the questioned
Resolutions. 16
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 In this Resolution, we simplify the issues raised by the parties, thus: Did the
COMELEC act without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction when it resolved to hold the
plebiscite for the creation of the Province of Davao Occidental on 28 October
2013, simultaneous with the Barangay Elections?
We answer in the negative. DHcTaE

The COMELEC's power to administer elections

includes the power to conduct a plebiscite beyond the schedule
prescribed by law.
The conduct of a plebiscite is necessary for the creation of a province.
Sections 10 and 11 of Article X of the Constitution provide that:
Sec. 10. No province, city, municipality, or barangay 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 approval by a majority of the votes cast in a plebiscite
in the political units directly affected.
Sec. 11. The Congress may, by law, create special metropolitan
political subdivisions, subject to a plebiscite as set forth in Section 10
hereof. The component cities and municipalities shall retain their basic
autonomy and shall be entitled to their own local executive and legislative
assemblies. The jurisdiction of the metropolitan authority that will thereby
be created shall be limited to basic services requiring coordination.
Section 10, Article X of the Constitution emphasizes the direct exercise by the
people of their sovereignty. After the legislative branch's enactment of a law to
create, divide, merge or alter the boundaries of a local government unit or units,
the people in the local government unit or units directly affected vote in a
plebiscite to register their approval or disapproval of the change. 17 cHaICD

The Constitution does not specify a date as to when plebiscites should be

held. This is in contrast with its provisions for the election of members of the
legislature in Section 8, Article VI 18 and of the President and Vice-President in
Section 4, Article VII. 19 The Constitution recognizes that the power to fix the date
of elections is legislative in nature, which is shown by the exceptions in previously
mentioned Constitutional provisions, as well as in the election of local
government officials. 20
Section 10 of R.A. No. 7160 furnishes the general rule as to when a
plebiscite may be held:
Sec. 10. Plebiscite Requirement. — No creation, division, merger,
abolition, or substantial alteration of boundaries of local government units
shall take effect unless approved by a majority of the votes cast in a
plebiscite called for the purpose in the political unit or units directly
affected. Said plebiscite shall be conducted by the Commission on Elections
(COMELEC) within one hundred twenty (120) days from the date of
effectivity of the law or ordinance effecting such action, unless said law or
ordinance fixed another date.
Section 46 of R.A. No. 10360, however, specifically provides that the
plebiscite for the creation of the province of Davao Occidental be held within 60
days from the effectivity of R.A. No. 10360, or until 6 April 2013. 21 Cagas claims
that R.A. No. 10360 "did not confer express or implied power to COMELEC to
exercise discretion when the plebiscite for the creation of the Province of Davao
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 Occidental will be held. On the contrary, said law provides a specific period when
the COMELEC should conduct a plebiscite." 22 Cagas views the period "60 days
from the effectivity" in R.A. No. 10360 as absolute and mandatory; thus,
COMELEC has no legal basis to hold a plebiscite on 28 October 2013. AEDCHc

The Constitution, however, grants the COMELEC the power to "[e]nforce and
administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall." 23 The COMELEC has "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." 24 The
text and intent of Section 2 (1) of Article IX (C) 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." 25
Sections 5 and 6 of Batas Pambansa Blg. 881 (B.P. Blg. 881) the Omnibus
Election Code, provide the COMELEC the power to set elections to another date.
Sec. 5. Postponement of election. — When for any serious cause
such as violence, terrorism, loss or destruction of election paraphernalia or
records, force majeure, and other analogous causes of such a nature that
the holding of a free, orderly and honest election should become impossible
in any political subdivision, the Commission, motu proprio or upon a verified
petition by any interested party, and after due notice and hearing, whereby
all interested parties are afforded equal opportunity to be heard, shall
postpone the election therein to a date which should be 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 for such
postponement or suspension of the election or failure to elect. TCcSDE

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.
The tight time frame in the enactment, signing into law, and effectivity of
R.A. No. 10360 on 5 February 2013, coupled with the subsequent conduct of the
National and Local Elections on 13 May 2013 as mandated by the Constitution,
rendered impossible the holding of a plebiscite for the creation of the province of
Davao Occidental on or before 6 April 2013 as scheduled in R.A. No. 10360. We
also take judicial notice of the COMELEC's burden in the accreditation and
registration of candidates for the Party-List Elections. 26 The logistic and financial
impossibility of holding a plebiscite so close to the National and Local Elections is
unforeseen and unexpected, a cause analogous to force majeure and
administrative mishaps covered in Section 5 of B.P. Blg. 881. The COMELEC is
justified, and did not act with grave abuse of discretion, in postponing the holding
of the plebiscite for the creation of the province of Davao Occidental to 28
October 2013 to synchronize it with the Barangay Elections. EcHaAC

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 The OSG illustrated the COMELEC's predicament in this manner:
To be sure, at the time R.A. No. 10360 was approved, the COMELEC
had to deliver and accomplish the following, among many others, for the
May 2013 National and Local Elections:
1. Preparation of the Project of Precincts indicating the total
number of established precincts and the number of registered voters per
precincts [sic ] in a city or municipality.
2. Constitution of the Board of Election Inspectors including the
precincts where they will be assigned and the barangay where the precinct
is located.
3. Inspection, verification and sealing of the Book of Voters
containing the approved voter registration records of registered voters in
the particular precinct which must be inspected, verified, and sealed.
4. Finalization and printing of the computerized voters list for use
on election day.
5. The preparation, bidding, printing and distribution of the voters'
information.
6. Configuration, testing, and demonstration of the PCOS machines
and their distribution to the different precincts.
EDATSI

To comply with the 60-day period to conduct the plebiscite then, as

insisted, petitioner would have the COMELEC hold off all of its above tasks. If
COMELEC abandoned any of its tasks or did not strictly follow the timetable
for the accomplishment of these tasks then it could have put in serious
jeopardy the conduct of the May 2013 National and Local Elections. The
COMELEC had to focus all its attention and concentrate all its manpower and
other resources on its preparation for the May 2013 National and Local
Elections, and to ensure that it would not be derailed, it had to defer the
conduct of all plebiscites including that of R.A. No. 10360.
Parenthetically, for the COMELEC to hold the plebiscite for the
ratification of R.A. No. 10360 within the fixed period, it would have to
reconfigure for said purpose some of the PCOS machines that were already
configured for the May 2013 National and Local Elections; or in the
alternative, conduct the plebiscite manually.
However, conducting the plebiscite manually would require another
set of ballots and other election paraphernalia. Besides, another set of
election materials would also require additional logistics for printing,
checking, packing, and deployment thereof. Lest it be forgotten, that all of
these things should undergo public bidding.
Since the plebiscite would be a separate undertaking, the COMELEC
would have to appoint separate sets of board[s] of election inspectors,
tellers, and other personnel to canvass the result of the plebiscite — all of
which would have entailed further cost for the COMELEC whose budget had
already been overly stretched to cover the May 2013 National and Local
Elections.
More importantly, it bears stressing that the COMELEC was not given a
special budget to defray the cost of the plebiscite. In fact, the COMELEC had
to take P11 million from its savings and from the Barangay Elections budget
to finance the plebiscite to ratify R.A. No. 10360 on October 28, 2013. HIaTDS

The COMELEC's questioned Resolution then directing the holding of

the plebiscite for the ratification of R.A. No. 10360 simultaneously with the
Barangay Elections was not an abuse of its discretion, as alleged, but simply
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 an exercise of prudence, because as the COMELEC itself noted, doing so
"will entail less expense than holding it separately." [p. 9, Resolution No. 13-
0926, Annex B, Petition.]
The determination of the feasibility of holding a plebiscite on a given
date is within the competence and discretion of the COMELEC. Petitioner
cannot therefore simply insist that the COMELEC should have complied with
the period specified in the law when doing so would be virtually impossible
under the circumstances. 27
This Court has rejected a too literal interpretation of election laws in favor of
holding free, orderly, honest, peaceful and credible elections.
In Pangandaman v. COMELEC, 28 Lining Pangandaman (Pangandaman) filed
a petition for certiorari and prohibition with prayer for temporary restraining order
and preliminary injunction to challenge the Omnibus Order of the COMELEC En
Banc. The COMELEC En Banc ordered the conduct of special elections in certain
municipalities in Lanao del Sur on 18 and 25 July 1998, or more than 30 days
after the failure of elections on 11 May 1998. Like Cagas, Pangandaman insisted
on a strict compliance with the schedule of the holding of special elections.
Pangandaman asserted that COMELEC's authority to call a special election was
limited by the 30-day period and that Congress had the power to call a special
election after the 30th day. We admonished Pangandaman against a too literal
interpretation of the law, and protected COMELEC's powers against the
straitjacketing by procedural rules. HICSaD

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. Thus, a too literal
interpretation of the law that would lead to absurdity prompted this Court to
—
. . . [a]dmonish against a too-literal reading of the law as this is apt
to constrict rather than fulfill its purpose and defeat the intention of
its authors. That intention is usually found not in 'the letter that
killeth but in the spirit that vivifieth' . . .
Section 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.
Pursuant to this intent, this Court has been liberal in defining the
parameters of the COMELEC's powers in conducting elections. As stated in
the old but nevertheless still very much applicable case of Sumulong v.
COMELEC: CTSDAI

Politics is a practical matter, and political questions must be

dealt with realistically — not from the standpoint of pure theory. The
Commission on Elections, because of its fact-finding facilities, its
contacts with political strategists, and its knowledge derived from
actual experience in dealing with political controversies, is in a
peculiarly advantageous position to decide complex political questions
. . . . There are no ready made formulas for solving public problems.
Time and experience are necessary to evolve patterns that will serve
the ends of good government. In the matter of the administration of
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 laws relative to the conduct of election . . . we must not by any
excessive zeal take away from the Commission on Elections that
initiative which by constitutional and legal mandates properly belongs
to it.
More pointedly, this Court recently stated in Tupay Loong v. COMELEC,
et al. , that "[O]ur elections are not conducted under laboratory conditions. In
running for public offices, candidates do not follow the rules of Emily Post.
Too often, COMELEC has to make snap judgments to meet unforeseen
circumstances that threaten to subvert the will of our voters. In the process,
the actions of COMELEC may not be impeccable, indeed, may even be
debatable. We cannot, however, engage in a swivel chair criticism of these
actions often taken under very difficult circumstances."
The purpose of the governing statutes on the conduct of elections —
. . . [i]s to protect the integrity of elections to suppress all evils that
may violate its purity and defeat the will of the voters. The purity of
the elections is one of the most fundamental requisites of popular
government. The Commission on Elections, by constitutional
mandate, must do everything in its power to secure a fair and
honest canvass of the votes cast in the elections. In the performance
of its duties, the Commission must be given a considerable latitude
in adopting means and methods that will insure the accomplishment
of the great objective for which it was created — to promote free,
orderly, and honest elections. The choice of means taken by the
Commission on Elections, unless they are clearly illegal or constitute
grave abuse of discretion, should not be interfered with.
Guided by the above-quoted pronouncement, the legal compass from
which the COMELEC should take its bearings in acting upon election
controversies is the principle that "clean elections control the
appropriateness of the remedy." CEASaT

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. 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."
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. 29 AEaSTC

In Sambarani v. COMELEC, 30 petitioners were candidates for punong

barangay in different barangays in Lanao del Sur. There was a failure of elections
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 in the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan (SK)
Elections, and special elections were set on 13 August 2002 in the affected
barangays. No special elections were held on 13 August 2002, so petitioners
asked the COMELEC to declare a failure of elections in their barangays and to
hold another special election. The COMELEC, however, directed the Department
of the Interior and Local Government to appoint the Barangay Captains, Barangay
Kagawads, SK Chairmen, and SK Kagawads in the affected barangays. The
COMELEC stated that it is no longer in a position to call for another special
election since Section 6 of the Omnibus Election Code provides that "special
elections shall be held on a date reasonably close to the date of the election not
held, but not later than thirty days after cessation of the cause of such
postponement."
We directed the COMELEC to conduct special elections and stated that the
deadline cannot defeat the right of suffrage of the people.
The prohibition on conducting special elections after thirty days from
the cessation of the cause of the failure of elections is not absolute. It is
directory, not mandatory, and the COMELEC possesses residual power to
conduct special elections even beyond the deadline prescribed by law. The
deadline in Section 6 cannot defeat the right of suffrage of the people as
guaranteed by the Constitution. The COMELEC erroneously perceived that
the deadline in Section 6 is absolute. The COMELEC has broad power or
authority to fix other dates for special elections to enable the people to
exercise their right of suffrage. The COMELEC may fix other dates for the
conduct of special elections when the same cannot be reasonably held
within the period prescribed by law. 31 TDCaSE

It is thus not novel for this Court to uphold the COMELEC's broad power or
authority to fix other dates for a plebiscite, as in special elections, to enable the
people to exercise their right of suffrage. The COMELEC thus has residual power
to conduct a plebiscite even beyond the deadline prescribed by law. The date 28
October 2013 is reasonably close to 6 April 2013, and there is no reason why the
plebiscite should not proceed as scheduled by the COMELEC. The OSG points out
that public interest demands that the plebiscite be conducted.
At this point, there is nothing more for the COMELEC to do except to
hold the plebiscite as scheduled on October 18, [sic ] 2013. In fact, the
COMELEC already scheduled the shipment and deployment of the election
paraphernalia to all the precincts in Davao del Sur, except Davao City.
The COMELEC had put so much work and effort in its preparation for
the conduct of the plebiscite. A substantial amount of funds have also been
defrayed for the following election undertakings:
1. Bidding for election paraphernalia;
2. Cleansing of voters' registration list;
3. Preparation, bidding, printing and distribution of the voters'
information;
4. Preparation and completion of the projects of precincts;
5. Printing of ballots; cDTIAC

6. Constitution of the Board of Election Inspectors;

7. Training and assignment of personnel; [and]
8. Information dissemination/campaign.

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 To demand now that the COMELEC desist from holding the plebiscite
would be an utter waste of time, effort and resources, not to mention its
detriment to public interest given that public funds are involved. 32
In election law, the right of suffrage should prevail over mere scheduling
mishaps in holding elections or plebiscites. Indeed, Cagas' insistence that only
Congress can cure the alleged legal infirmity in the date of holding the plebiscite
for the creation of the Province of Davao Occidental fails in light of the absence of
abuse of discretion of the COMELEC. Finally, this Court finds it unacceptable to
utilize more of our taxpayers' time and money by preventing the COMELEC from
holding the plebiscite as now scheduled.
WHEREFORE, we DISMISS the petition for lack of merit. SaAcHE

SO ORDERED.
Sereno, C.J., Velasco, Jr., Leonardo-de Castro, Brion, Peralta, Bersamin,
Abad, Villarama, Jr., Mendoza, Reyes, Perlas-Bernabe and Leonen, JJ., concur.
Del Castillo and Perez, JJ., are on official leave.

Footnotes

1. Under Rule 65, Section 2 of the Rules of Court.

2. The history of H.B. No. 4451 is provided in

http://www.congress.gov.ph/legis/search/hist_show. php?
congress=15&save=1&journal=&switch=0&bill_no=HB04451 (accessed 23
October 2013) as follows:

NO. HB04451 REPUBLIC ACT NO. RA10360

FULL TITLE: AN ACT CREATING THE PROVINCE OF DAVAO OCCIDENTAL
SHORT TITLE: Creating The Province Of Davao Occidental
BY CONGRESSMAN/WOMAN CAGAS, MARC DOUGLAS IV CHAN
DATE FILED ON 2011-03-23
CO-AUTHORS:
BAUTISTA, FRANKLIN PERALTA
REFERRAL ON 2011-03-23 TO THE COMMITTEE ON RULES
SIGNIFICANCE: LOCAL
DATE READ: 2011-03-23
COMMITTEE REPORT NO. 00827 submitted on 2011-03-23
SUBMITTED BY: LOCAL GOVERNMENT
RECOMMENDATIONS: approval
SUBSTITUTED BILLS: HB03644
DATE INCLUDED IN OB: 2011-03-23
BILL APPROVED ON SECOND READING: 2011-03-23
DATE DISTRIBUTED: 2011-05-09
REMARKS: On March 23, 2011, the Body approved to consider the Explanatory
Note of the bill as the sponsorship remarks on the measure; terminated the period
of sponsorship and debate; terminated the period of amendments and approved
the same on Second Reading.
DATE APPROVED BY THE HOUSE ON THIRD READING: 2011-05-16
HOUSE VOTES: YEAS: 219 NAYS: 0 ABSTAIN: 0
DATE TRANSMITTED TO THE SENATE: 2011-05-24
DATE RECEIVED BY THE SENATE: 2011-05-24
DATE PASSED BY THE SENATE: 2012-10-08
PASSED WITH AMENDMENTS(Y/N)?: Y
DATE REQUESTED TO FORM A CONFERENCE COMMITTEE (CC): 2012-10-17
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 CC REQUESTED
DATE AGREED TOBY: HOUSE
FORM A CC: 2012-11-12
REMARKS:
DATE HOUSE AGREED ON CONCOM REPORT: 2012-11-28
DATE SENATE AGREED ON CONCOM REPORT: 2012-12-05
DATE TRANSMITTED TO THE PRESIDENT: 2012-12-21
DATE ACTED UPON BY THE PRESIDENT: 2013-01-14
PRESIDENTIAL ACTION: (A)PPROVED/(V)ETOED/(L)APSED: A
REPUBLIC ACT NO.: RA10360
ORIGIN: HOUSE
REPUBLIC ACT TITLE: AN ACT CREATING THE PROVINCE OF DAVAO OCCIDENTAL

3. Section 54 of R.A. No. 10360 provides:

Effectivity. — This Act shall take effect fifteen (15) days upon its publication in at
least two (2) newspapers of general and local circulation.

4. Fifteen days from 21 January 2013, the date of publication, is 5 February 2013. Sixty
days from 5 February 2013, the date of effectivity, is 6 April 2013.

5. Rollo , p. 53.

6. Id. at 54.
7. Id.

8. Id. at 57.

9. Calendar of Activities and Periods of Prohibited Acts in Connection with the Plebiscite
for the Creation of Davao Occidental out of the Province of Davao del Sur
Consisting of the Municipalities of Sta. Maria, Malita, Don Marcelino, Jose Abad
Santos, and Sarangani, Pursuant to Republic Act No. 10360 Dated July 23, 2012
and the Adoption of Pertinent Resolutions in Connection Therewith.
http://www.comelec.gov.ph/?r=Plebiscites/res9771 (accessed 23 October 2013).

10. Rules and Regulations Governing the Conduct of the October 28, 2013 Plebiscite to
Ratify the Creation of the Province of Davao Occidental out of Davao del Sur
Pursuant to Republic Act No. 10360 Dated 23 July 2012.
http://www.comelec.gov.ph/?r=Plebiscites/res9772 (accessed 23 October 2013).
11. SEC. 3. Posting of Republic Act No. 10360. — At least ten (10) days prior to the day
of the plebiscite, the Election Officers (EOs) of the whole Province of Davao del
Sur, except Davao City, shall cause the posting of [a] copy of Republic Act No.
10360 in the bulletin boards of their respective City/Municipal Halls.

12. SEC. 4. Information campaign. — An objective information campaign shall be

conducted in the whole of Davao del Sur, except Davao City, to commence on
September 28, 2013 to October 26, 2013. During this period, civic, professional,
religious, business, youth and any other similar organizations may hold symposia,
public rallies or meetings to enlighten the voters of Davao del Sur on the plebiscite
issues, and to campaign for or against the ratification of Republic Act No. 10360.
Constructive discussions and debates shall be encouraged and the voters assured
of the freedom to voice their opinion regarding the issues, advantages or
disadvantages thereof.

The EOs in the Province of Davao del Sur, under the supervision of the Provincial
Election Supervisor of Davao del Sur and the Regional Election Director of Region
XI, in coordination with the local government officials, mass media, NGOs and
religious groups shall convene barangay assemblies or "pulong-pulongs" for such
constructive discussions and debates.

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 13. Rollo , p. 10.

14. Id. at 14-15.

15. Id. at 17.

16. Comment, p. 4.

17. See Miranda v. Hon. Aguirre , 373 Phil. 386 (1999).

18. Section 8, Article VI of the Constitution reads: "Unless otherwise provided by law, the
regular election of the Senators and the Members of the House of Representatives
shall be held on the second Monday of May."

19. The third paragraph of Section 4, Article VII of the Constitution reads: "Unless
otherwise provided by law, the regular election for President and Vice-President
shall be held on the second Monday of May."

20. Section 3, Article X of the Constitution reads in part: "The Congress shall enact a
local government code which shall provide for the . . . election . . . of local officials
. . . ." In turn, Section 42 of R.A. No. 7160, or the Local Government Code of 1991,
reads: " Date of Election. — Unless otherwise provided by law, the elections for
local officials shall be held every three (3) years on the second Monday of May."

21. Supra note 4.

22. Rollo , p. 12.

23. 1987 CONSTITUTION, ART. IX-C, SEC. 2 (1).

24. B.P. Blg. 881, Sec. 52.

25. Pangandaman v. COMELEC, 377 Phil. 297, 312 (1999).

26. See the consolidated cases under Atong Paglaum, Inc. v. COMELEC , G.R. No.
203766, 2 April 2013, 694 SCRA 477.

27. Comment, pp. 7-9.

28. Supra note 25.

29. Id. at 312-314. Citations omitted. Italics in the original.

30. 481 Phil. 661 (2004).

31. Id. at 671-672.

32. Comment, pp. 11-12.

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