BATALLA V. COMELEC (idem sonans & neighborhood rule)

EN BANC

G.R. No. 184268 September 15, 2009

ERNESTO BATALLA, Petitioner,
vs.
COMMISSION ON ELECTIONS and TEODORO BATALLER, Respondents.

D E C I S I O N

VELASCO, JR., J.:

The Case

In a Petition for Certiorari under Rules 65 in Relation to Rule 64 of the Rules of Court, petitioner assails the Order¹ of the Commission on Elections (Comelec) First Division dated April 3, 2008 dismissing his appeal from the February 12, 2008 Decision² of the Municipal Circuit Trial Court (MCTC), Bacacay, Albay, in Election Case No. B-2007-2, and the Order³ of the Comelec En Banc dated August 5, 2008 denying his motion for reconsideration.

The Facts

Petitioner Ernesto Batalla (Batalla), who was a former Punong Barangay, and private respondent Teodoro Bataller (Bataller), then incumbent Punong Barangay, were candidates for the position of Punong Barangay or Barangay Chairperson in Barangay Mapulang Daga, Bacacay, Albay during the October 29, 2007 barangay elections. During the count, Batalla garnered 113 votes while Bataller garnered 108 votes. Consequently, Batalla was proclaimed the Punong Barangay winner in Barangay Mapulang Daga, Bacacay, Albay.

On November 7, 2007, Bataller filed an election protest,⁴ docketed as Election Case No. B-2007-2, before the MCTC in Bacacay, Albay against Batalla and six members of the Board of Election Tellers in Precincts 107-A and 108-A for Barangay Mapulang Daga. Bataller claimed misappreciation of seven ballots. During the revision on December 7, 2007, Batalla did not protest any ballots.

The Ruling of the MCTC

On February 12, 2008, the trial court rendered its Decision finding that Batalla and Bataller had garnered an equal number of votes. The fallo reads:

WHEREFORE, premises considered, judgment is hereby rendered:

1. Declaring that the protestant [Bataller] and the protestee [Batalla] have received equal number of votes for the position of Punong Barangay of Mapulang Daga, Bacacay, Albay, in the October 29, 2007 barangay election, and the winning candidate between the two shall be proclaimed as elected in accordance with Section 240, Article XIX of the Omnibus Election Code.

SO ORDERED.⁵

Section 240⁶ of Batas Pambansa Bilang 881, as amended, otherwise known as the Omnibus Election Code, provides for the drawing of lots in case of a tie of two or more electoral candidates garnering the same or equal highest number of votes, with the proclamation as winner of the candidate favored by luck.

Of the seven ballots protested, the trial court appreciated five of them in favor of Bataller by applying the neighborhood and intent rules as enunciated in Ferrer v. Comelec⁷ and Velasco v. Commission on Elections,⁸ and the application of the doctrine of idem sonans. Consequently, the MCTC found both Batalla and Bataller garnering an equal number of 113 votes each.

Aggrieved, Batalla timely filed his Notice of Appeal⁹ of the trial court’s decision elevating the election protest before the Comelec, docketed as EAC (BRGY.) No. 89-2008.

The Ruling of the Comelec First Division

On April 3, 2008, the Comelec First Division issued the first assailed Order dismissing Batalla’s appeal in this wise:

Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure which provide for the payment of appeal fee in the amount of [P3,000.00] within the period to file the notice of appeal, and Section 9 (a), Rule 22 of the same Rules which provides that failure to pay the correct appeal fee is a ground for the dismissal of the appeal, the Commission (First Division) RESOLVED as it here RESOLVES to DISMISS the instant case for Protestee-Appellant’s [Batalla] failure to pay the appeal fee as prescribed by the Comelec Rules of Procedure within the five-(5)-day reglementary period.

SO ORDERED.

Aggrieved further, Batalla elevated before the Comelec En Banc the above Order of the Comelec First Division by filing on April 11, 2008 his Motion for Reconsideration¹⁰ followed by a Supplemental Motion for Reconsideration¹¹ on April 30, 2008.

The Ruling of the Comelec En Banc

On August 5, 2008, the Comelec En Banc issued the second assailed Order affirming the Comelec First Division’s earlier Order dismissing the appeal for Batalla’s failure to pay the appeal fee and, moreover, denying his motion for reconsideration for his failure to verify the motion. The second assailed Order, in its entirety, reads:

Acting on the Motion for Reconsideration filed via registered mail on April 11, 2008 by protestee-appellant [Batalla], through counsel, seeking reconsideration of the Order issued by the Commission (First Division) on April 3, 2008 dismissing the herein appeal for protestee-appellant’s [Batalla] failure to pay the appeal fee as prescribed by the Comelec Rules of Procedure within the five-day reglementary period and the Manifestation filed via registered mail on April 23, 2008 by protestant-appellee [Bataller], through counsel, stating that the Motion for Reconsideration was not verified and therefore inadmissible on record and must be expunged therefrom, and praying that the Order of April 3, 2008 be declared as final, the Commission En Banc resolved to:

1. DENY the Motion for Reconsideration for movant’s [Batalla] failure to VERIFY the same in accordance with Section 3, Rule 19 of the Comelec Rules of Procedure, which states:

"Rule 19 – Motions for Reconsideration.

Section 3. Form and Contents of Motion for Reconsideration – The motion shall be verified x x x"

2. Declare the Order of April 3, 2008 to have become final and executory as of April 25, 2008, there being no motion for reconsideration to speak of, pursuant to Section 13 (c), Rule 18 of the Comelec Rules of Procedure, to wit:

"Section 13. Finality of Decisions or Resolutions.

x x x x

(c) Unless a motion is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special Actions and Special Cases and after fifteen (15) days in all other actions or proceedings following its promulgation."

ACCORDINGLY, the Clerk of the Commission, Electoral Contests Adjudication Department, is hereby directed to immediately issue an Entry of Judgment and the Chief, Judicial Records Division of the same department, to remand the records of the case to the lower court for its proper disposition.

Let copies of this Order and the Order of April 3, 2008 be furnished to Her Excellency, President Gloria Macapagal-Arroyo, the Secretary, Department of the Interior and Local Government, the Chairman, Commission on Audit and the Secretary, Sangguniang Barangay of Barangay Mapulang Daga, Bacacay, Albay, pursuant to Section 11 (b), Rule 18 of the Comelec Rules of Procedure.

SO ORDERED.

Consequently, on August 11, 2008, the Comelec Electoral Contests Adjudication Department issued an Entry of Judgment¹² in EAC No. 89-2008.

The Issues

Thus the instant petition, with Batalla raising the following issues for our consideration:

A. WHETHER OR NOT THE RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED RESOLUTION DISMISSING THE APPEAL ON TWO GROUNDS OF TECHNICALITIES: A) FOR FAILURE ON THE PART OF THE PETITIONER TO PAY THE APPEAL FEE ON TIME; AND B) FAILURE TO VERIFY THE MOTION FOR RECONSIDERATION.

B. WHETHER OR NOT THE FIVE CONTESTED VOTES BE DECLARED VOID AND THE HEREIN PETITIONER BE DECLARED AS THE WINNER IN THE BARANGAY ELECTION LAST OCTOBER 29, 2007.¹³

The foregoing issues can be summarized into two: first, the procedural issue of whether Batalla’s appeal ought to be given due course despite the procedural infirmities of belated payment of the appeal fee and the non-verification of his motion for reconsideration; and second, the corollary substantive issue—if the appeal is given due course—of whether the appeal is meritorious.

The Court’s Ruling

The petition is meritorious.

Procedural Issue: Appeal Already Perfected

Respondent Comelec grievously erred and gravely abused its discretion when it dismissed and denied petitioner’s appeal.

The records show that Batalla received the February 12, 2008 MCTC Decision on February 20, 2008. He timely filed his Notice of Appeal on February 22, 2008 with the MCTC and paid the PhP 1,000 appeal fee pursuant to A.M. No. 07-4-15-SC.¹⁴ He admits paying to the Comelec the additional appeal docket fee of PhP 3,200¹⁵ only on March 5, 2008 or 11 days after he received a copy of the MCTC Decision on February 20, 2008, way beyond the five-day reglementary period to file the appeal under Secs. 3 and 4, Rule 40 of the Comelec Rules of Procedure. Batalla, however, postulates that the delay in the payment of the appeal fee in the Comelec was caused by his difficulty in getting to Manila from Barangay Mapulang Daga which is located in an island off the poblacion of Bacacay, Albay due to the massive floods that inundated the Bicol area in the months of February and March 2008, aside from the difficulty in getting a bus ride from Bacacay, Albay to Manila.

While Batalla concedes that his motion for reconsideration of the April 3, 2008 Order of the Comelec First Division was not verified, he submits that he cured the omission by attaching to the instant petition his Verification¹⁶ as compliance for his motion. He begs our indulgence in light of the Court’s ruling in Buenaflor v. Court of Appeals,¹⁷ which reiterated the liberal application of the rules in the perfection of an appeal upon substantial justice and equity considerations.

Be it noted that while the Office of the Solicitor General (OSG) on behalf of public respondent Comelec filed its Comment¹⁸ on the instant petition, respondent Bataller, despite notice,¹⁹ failed to register his comment. Thereafter, Bataller was sent notice²⁰ requiring him to show cause and to comply with the earlier notice to file his comment. To date, Bataller has neither filed his comment nor complied with the show-cause order. Thus, his opportunity to submit his comment is dispensed with.

The OSG argues that the instant petition is bereft of merit, since the Comelec did not gravely abuse its discretion in dismissing Batalla’s appeal. The Comelec cannot be faulted for issuing the assailed orders, applying the clear provisions of the Comelec Rules of Procedure, specifically Sec. 9(a) of Rule 22. Moreover, the OSG reasons out that Batalla’s late payment of the additional appeal fee to the Comelec is fatal, since his appeal was never perfected. The mere filing of a notice of appeal is not enough, for the timely payment of the full appeal fee is an essential requirement for the perfection of an appeal, based on Rodillas v. Comelec.²¹ And finally, the OSG cites Loyola v. Commission on Election²² and other cases,²³ which consistently emphasized that non-payment of filing fees in election cases is no longer excusable.

The general rule is that payment of appellate docket fees within the prescribed reglementary period for filing an appeal is mandatory for the perfection of an appeal. Secs. 3²⁴ and 4²⁵ of Rule 40 of the Comelec Rules of Procedure provide for the payment of an additional appeal fee in the amount of PhP 3,200 within the period to file the notice of appeal, i.e., within five days from receipt of the assailed decision of the trial court.²⁶ And an appellant’s failure to pay the said appeal fee is a ground for the dismissal of the appeal by the Comelec under the succeeding Sec. 9(a) of Rule 22.²⁷

Payment of the two appeal fees perfects the appeal

In the instant case, however, we find that Batalla already perfected his appeal by filing his Notice of Appeal and by paying the PhP 1,000 appeal fee, pursuant to A.M. No. 07-4-15-SC, within the five-day reglementary period, to the MCTC; and by paying the additional appeal fee of PhP 3,200 to the Comelec Cash Division on March 5, 2008. Consequently, the Comelec First Division committed grave abuse of discretion in dismissing Batalla’s appeal and, likewise, so did the Comelec En Banc in not correcting this error by denying Batalla’s motion for reconsideration.

The issue of the correct appeal fee to be paid for the perfection of an appeal from the decision of the trial court in electoral cases was clarified in very recent cases––Aguilar v. Commission on Elections²⁸ and Divinagracia v. Commission on Elections.²⁹ In both cases, the Court clarified that the appellant in an electoral protest case decided by the trial court must file his notice of appeal and pay the PhP 1,000 appeal fee to the trial court that rendered the decision, and must pay to the Comelec Cash Division the required additional PhP 3,200 appeal fee.

In Aguilar, the earlier case decided on June 30, 2009, the Court ruled that the issuance of A.M. No. 07-4-15-SC on April 24, 2007, which became effective on May 15, 2007, had superseded Secs. 3 and 4, Rule 40 of the Comelec Rules of Procedure (which provided for the payment of the additional PhP 3,200 appeal fee to the Comelec Cash Division within the same five-day reglementary period for filing the notice of appeal) in that the payment of the PhP 1,000 appeal fee to the trial court already perfected the appeal of appellant. The Court added that the nonpayment or the insufficient payment of said additional appeal fee to the Comelec Cash Division does not affect the perfection of the appeal or result in the outright or ipso facto dismissal of the appeal; and that the Comelec is merely given the discretion to dismiss the appeal or not, following Sec. 9 (a), Rule 22 of the Comelec Rules, or the Comelec may refuse to take action thereon until the appeal fees are paid pursuant to Sec. 18, Rule 40 of the Comelec Rules. This ruling, however, has been abandoned in Divinagracia.

In Divinagracia, decided on July 27, 2009, the Court took a second look at the issue of an appellant’s compliance with the payment of the required appeal fees (both to the trial court and to the Comelec) in the backdrop of Comelec Resolution No. 8486 in relation to A.M. No. 07-4-15-SC. The Court ruled, thus:

Considering that a year has elapsed after the issuance on July 15, 2008 of Comelec Resolution No. 8486, and to further affirm the discretion granted to the Comelec which it precisely articulated through the specific guidelines contained in said Resolution, the Court NOW DECLARES, for the guidance of the Bench and Bar, that for notice of appeal filed after the promulgation of this decision, errors in the matter of non-payment or incomplete payment of the two appeal fees in election cases are no longer excusable.

Comelec Resolution No. 8486,³⁰ issued on July 15, 2008, clarified the procedural rules on the payment of appeal fees. In said resolution, the Comelec clarified that: (a) if the appellant had paid the PhP 1,000 appeal fee to the trial court within the five-day reglementary period pursuant to A.M. No. 07-4-15-SC and his appeal was given due course by the trial court, said appellant was required to pay the additional appeal fee of P3,200.00 to the Commission’s Cash Division within a period of fifteen (15) days from the time of the filing of the Notice of Appeal with the lower court, or else the appeal would be dismissible under Sec. 9 (a) of Rule 22; and (b) if the appellant had failed to pay the PhP 1,000 appeal fee to the trial court within the five (5) day period as required under A.M. No. 07-4-15-SC, but the case was nonetheless elevated to the Comelec, no appeal was perfected and it should be dismissed outright pursuant to Sec. 9 (a) of Rule 22.

Thus, in holding that Aguilar had not diluted the force of Comelec Resolution No. 8486, the Court in Divinagracia categorically ruled that for an appeal to be perfected in an election case from the trial court, the appellant must: (1) file his Notice of Appeal and pay the PhP 1,000 appeal fee within the five-day reglementary period to the trial court that rendered the assailed decision, pursuant to A.M. No. 07-4-15-SC; and (2) pay to the Comelec Cash Division the additional PhP 3,200 appeal fee within 15 days from the time of the filing of the Notice of Appeal with the lower court pursuant to Comelec Resolution No. 8486. Thus, any error in the matter of nonpayment or incomplete payment of the two appeal fees in election cases is no longer excusable and is a cause for the outright dismissal of the appeal.

We, however, note that under the present Comelec Rules of Procedure, Sec. 3, Rule 40 provides for the payment of the additional PhP 3,200 appeal fee to the Comelec Cash Division. The period in which to pay such additional appeal fee is provided under Sec. 4, Rule 40, thus:

Sec. 4. Where and When to Pay. - The fees prescribed in Sections 1, 2 and 3 hereof shall be paid to, and deposited with, the Cash Division of the Commission within a period to file the notice of appeal.

And the period to file the notice of appeal is provided under Sec. 3 of Rule 22, thus:

Sec. 3. Notice of Appeal. - Within five (5) days after promulgation of the decision of the court, the aggrieved party may file with said court a notice of appeal, and serve a copy thereof upon the attorney of record of the adverse party.

The promulgation of the decision is understood to mean the receipt by a party of a copy of the decision. Thus, to recapitulate, under Sec. 4, Rule 40 in relation to Sec. 3, Rule 22 of the Comelec Rules of Procedure, an appellant from a decision of a trial court in an election protest case is given a reglementary period of five days from the receipt of a copy of the decision within which to pay the PhP 3,200 additional appeal fee to the Comelec Cash Division.

Considering that the Comelec En Banc issued on July 15, 2008 Comelec Resolution No. 8486, which allowed the payment of the additional appeal fee of PhP 3,200 to the Comelec Cash Division within 15 days from the filing of the notice of appeal, said Resolution, however, has effectively amended Sec. 4, Rule 40 of the Comelec Rules of Procedure. Thus, the Comelec is advised to reflect such amendment in their rules for the proper guidance of the Bench, the Bar, and litigants.

In the instant case, it is undisputed that Batalla had already perfected his appeal by paying the required appeal fees. He paid the PhP 1,000 appeal fee to the trial court on February 22, 2008 within the five-day period from receipt of the decision and the additional PhP 3,200 appeal fee to the Comelec Cash Division on March 5, 2008 or within 15 days from the filing of his notice of appeal. It is, thus, clear that Batalla had perfected his appeal by complying with the appeal requirements.

It must be noted that the required payment of separate and distinct appeal fees to the trial court under A.M. No. 07-4-15-SC and to the Comelec under its Rules of Procedure has caused much confusion to litigants. In fact, it became necessary for the Comelec to clarify the procedural rules on the payment of these appeal fees, and for this purpose issued Comelec Resolution No. 8486 on July 15, 2008.

While it seems that the Comelec First Division may not be faulted for following the then prevailing Comelec Rules of Procedure, still, it cannot close its eyes to the fact of the confusion in the payment of distinct appeal fees, which many litigants––like petitioner Batalla––went through. It must be noted that Batalla complied in good faith with the required payment of the additional appeal fee as soon as he was able.

But what was worse was the Comelec En Banc’s denial of Batalla’s motion for reconsideration on mere procedural grounds, through the second assailed Order of August 5, 2008, after it had already issued clarificatory Resolution No. 8486 on July 15, 2008. Having issued said clarificatory resolution a scant 16 days before it issued the second assailed Order, the Comelec En Banc was duty-bound to recognize the timeliness and the compliance of Batalla’s appeal. Procedural rules are applied retroactively when no vested rights are prejudiced. Such was the case with Batalla’s appeal. He had paid the PhP 1,000 appeal fee to the MCTC within the five-day reglementary period under Sec. 4 of Rule 40 of the Comelec Rules of Procedure. And he paid the additional PhP 3,200 appeal fee to the Comelec Cash Division within the 15-day period granted under Resolution No. 8486. Clearly, he had complied with the procedural appeal requirements of the Comelec.

Fairness and prudence dictate that the Comelec En Banc should have recognized Batalla’s compliance with clarificatory Resolution No. 8486 when it resolved his motion for reconsideration and should not have merely denied it on the procedural ground of non-verification. It is true that the verification requirement was not complied with, but such procedural lapse pales in the face of the manifest error in the dismissal of Batalla’s appeal by the Comelec First Division when the Comelec En Banc had already issued Resolution No. 8486, granting an appellant—in this case, Batalla—15 days within which to pay the additional fee of PhP 3,200, with which he had already complied.

Perforce, then, the assailed Orders must be reversed and set aside for having been issued with grave abuse of discretion. Accordingly, the appeal of Batalla must be given due course.

Substantive Issue: Petitioner Won in the Protested Election

In the interest of expeditious dispensation of justice, the Court will no longer remand Batalla’s appeal to the Comelec and instead rule on the merits of the appeal in this petition. The core issue is whether the five protested ballots were correctly appreciated by the MCTC as votes for Bataller, resulting into a tie between the contenders.

Batalla’s arguments

Batalla vehemently disagrees with the findings of the trial court in appreciating the five protested ballots in favor of Bataller, specifically arguing that:

(a) Ballot 1: Exhibit "A"³¹ shows, contrary to the finding of the MCTC, the contested name written on the line for Punong Barangay, but the surname is not discernable as it was written in a way susceptible to different interpretations, i.e., it can be read either as Batalla or Bataller. Batalla thus contends that this is a case of writing the first name of a candidate and the surname of the opposing candidate, in which case the ballot ought to be considered a stray ballot under Sec. 211(6)³² of the Omnibus Election Code.

(b) Ballot 2: Exhibit "B"³³ shows that while the space for Punong Barangay is left blank, the first of the names for kagawad is unreadable and does not sufficiently identify Bataller, since the name written seems to be "tododer" and as such cannot be equated to Teodoro (Bataller), much less, credited to him pursuant to Sec. 211(14)³⁴ of the Omnibus Election Code, for there is no way of determining the intention of the voter as held in Bautista v. Comelec.³⁵ Moreover, Batalla maintains that "tododer" cannot also be appreciated under the doctrine of idem sonans in favor of his opponent, as the MCTC erroneously held, for Bataller did not indicate or apply for "tododer" to be recognized as one of the names for which he can be voted, and neither has it been shown that Bataller is known in the barangay as such.

(c) Ballot 3: Exhibit "C,"³⁶ similar to Exhibit "B," should be deemed a stray ballot, for the real intention of the voter cannot be determined.

(d) Ballot 4: Exhibit "E"³⁷ shows the name of Teodoro Bataller written on the space for the candidates for kagawad, with that for Punong Barangay left blank, and should be considered a stray vote pursuant to Sec. 211(8)³⁸ of the Omnibus Election Code.

(e) Ballot 5: Exhibit "G"³⁹ is not legible and does not sufficiently identify the candidate, and to consider it a vote for Bataller is highly speculative and conjectural.

Only three ballots to be credited to Bataller

After a scrutiny of the five (5) contested ballots subject of Batalla’s instant position, we rule that three (3) ballots marked as Exhibits "A," "E," and "G" were properly appreciated and credited in favor of Bataller under the neighborhood rule and intent rule. On the other hand, the ballots marked as Exhibits "B" and "C" are stray ballots.

We explain our ruling this way:

(1) The above Exhibit "A" ballot clearly shows the first name "Teodoro," while the surname written is a bit confusing; still, it certainly cannot be read as "Batalla" since the way it is written clearly indicates eight characters. The first six characters clearly make out "Batall," and the last two characters are the ones that are quite illegible. The name "Batalla" consists of only seven characters, while "Bataller" consists of eight characters. Thus, with the eight characters of the surname and the first name properly made out as "Teodoro," the benefit of the doubt tilts in favor of Bataller. More so, if the first name alone of a candidate (where no other candidate has a similar name)––in this case, for example, Teodoro or Ernesto––is sufficient to appreciate the vote for that candidate, with more reason should the first name of Teodoro and the surname making out "Bataller" be appreciated in his favor. Evidently, the voter wanted to cast his ballot in favor of Bataller as Punong Barangay. The intent rule is well settled in this jurisdiction that in the appreciation of the ballot, the objective should be to ascertain and carry into effect the intention of the voter, if it could be determined with reasonable certainty. Hence, the intention of the voter to vote for Bataller is unequivocal from the face of the Exhibit "A" ballot. The ballot in question should be liberally appreciated to effectuate the voter’s choice of Bataller.

(2) The ballot marked as Exhibit "E" above was properly credited in Bataller’s name under the neighborhood rule as applied in Ferrer⁴⁰ and, more recently, in Abad v. Co⁴¹ where the Court applied the same rule and credited to the candidates for Punong Barangay the votes written on the first line for kagawad with the spaces for Punong Barangay left vacant.

The neighborhood rule is a settled rule stating that where the name of a candidate is not written in the proper space in the ballot, but is preceded by the name of the office for which he is a candidate, the vote should be counted as valid for said candidate.⁴² Such rule is usually applied in consonance with the intent rule which stems from the principle that in the appreciation of the ballot, the object should be to ascertain and carry into effect the intention of the voter, if it could be determined with reasonable certainty.

In Velasco, the Court explained the neighborhood rule and its application in this wise:

The votes contested in this appeal are all misplaced votes, i.e., votes cast for a candidate for the wrong or, in this case, inexistent office. In appreciating such votes, the COMELEC applied the "neighborhood rule." As used by the Court, this nomenclature, loosely based on a rule of the same name devised by the House of Representatives Electoral Tribunal (HRET), refers to an exception to the rule on appreciation of misplaced votes under Section 211(19) of Batas Pambansa Blg. 881 (Omnibus Election Code) which provides:

Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot. (Emphasis supplied.)

Section 211(19) is meant to avoid confusion in the minds of the election officials as to the candidates actually voted for and to stave off any scheming design to identify the vote of the elector, thus defeating the secrecy of the ballot which is a cardinal feature of our election laws. Section 211(19) also enforces Section 195 of the Omnibus Election Code which provides that in preparing the ballot, each voter must "fill his ballot by writing in the proper place for each office the name of the individual candidate for whom he desires to vote."

Excepted from Section 211(19) are ballots with (1) a general misplacement of an entire series of names intended to be voted for the successive offices appearing in the ballot; (2) a single or double misplacement of names where such names were preceded or followed by the title of the contested office or where the voter wrote after the candidate’s name a directional symbol indicating the correct office for which the misplaced name was intended; and (3) a single misplacement of a name written (a) off-center from the designated space, (b) slightly underneath the line for the contested office, (c) immediately above the title for the contested office, or (d) in the space for an office immediately following that for which the candidate presented himself. In these instances, the misplaced votes are nevertheless credited to the candidates for the office for which they presented themselves because the voters’ intention to so vote is clear from the face of the ballots. This is in consonance with the settled doctrine that ballots should be appreciated with liberality to give effect to the voters’ will.⁴³

The House of Representatives Electoral Tribunal (HRET) first laid down the particulars of the above "neighborhood rule" in Nograles v. Dureza.⁴⁴ Nograles and subsequent related rulings were later codified in its "Rules and Rulings on Appreciation of Ballots" (HRET Rules). We note that the HRET Rules⁴⁵ provided for the "neighborhood rule" and the "intent rule," and that the Senate Electoral Tribunal’s Rules on Appreciation of Ballots has adopted the HRET’s "neighborhood rule."

Thus, the MCTC is correct in appreciating name of Teodoro Bataller in the Exhibit "E" ballot as a vote for Bataller although written on the space for Kagawad pursuant to the neighborhood and intent doctrines.

(3) The ballot marked as Exhibit "G" above was likewise properly credited in Bataller’s name under the neighborhood rule and the intent rule, being similarly situated as the ballot marked as Exhibit "E." Moreover, contrary to Batalla’s contention, the name of Bataller, written in this ballot on the first line for kawagad, is quite distinct and legible.

(4) The Exhibit "B" ballot above is a stray ballot and cannot be credited to Bataller. We agree with Batalla that neither the neighborhood rule nor the doctrine of idem sonans apply to this instance. First, the neighborhood rule applies when the name for Punong Barangay is left vacant, while the name of a candidate for Punong Barangay is clearly legible or discernable. This particular ballot does not clearly show the name of the candidate written on the first space for kagawad. Second, the word "tododer" written on the first line for kagawad does not necessarily refer to Teodoro Bataller. The word "tododer" does not sound like Teodoro under the idem sonans (having the same sound) rule. Said rule of law states that the occurrence in a document of a spelling of a material word that is wrong but has the sound of the word intended does not vitiate the instrument.⁴⁶ Neither was it shown that Bataller is known by that name in Barangay Mapulang Daga in Bacacay, Albay. Third, while it is paramount to give full expression to the voter’s will under the intent rule as indicated in the ballots––thus, the liberality in ballot appreciation––it is necessary that the voter’s intention be at least discernable with certainty. It has not been satisfactorily shown that "tododer" is used as a name of a person or the nickname of a candidate. Absent any indication of such discernable intent, we cannot appreciate this particular ballot in favor of Bataller. Thus, the MCTC erroneously credited this ballot to Bataller.

(5) Exhibit "C" ballot above is also a stray vote, for Bataller’s name is not found on or near any of the lines corresponding to the offices of Punong Barangay and kagawads, and, thus, does not relate to any office. The name of Bataller was written in the upper portion of the ballot, above the instructions to the voter, but below the words "Bacacay, Albay," while the lines provided for the kagawads were properly filled up.

In Velasco,⁴⁷ a similar factual situation transpired in two protested ballots during the 2002 barangay elections. A particular ballot marked as Exhibit "13" showed that the lines for kagawad were properly filled up, but the line for Punong Barangay was left vacant and therein private respondent’s name written above the instructions to the voter and below the words "San Pablo City." On the other hand, the ballot marked as Exhibit "9" similarly had the lines for kagawad properly filled up, but therein private respondent’s name was written in the left uppermost part of the ballot. The Court ruled that the votes in the ballots marked as Exhibits "9" and "13" for therein private respondent were stray votes, for they did not relate to any office, and ratiocinated thus:

x x x Section 211(19), which treats misplaced votes as stray, speaks of a vote for a candidate "for an office for which he did not present himself." Thus, there is more reason to apply this rule here as the votes in Exhibits "9" and "13" do not even relate to any office.

Nor do the votes in question fall under any of the exceptions to Section 211(19) enumerated above. x x x Exhibits "9" and "13" present an unusual case of extremes—while respondent’s name was written way off its proper place, the names of persons who were presumably candidates for Sangguniang Barangay Kagawad were properly placed, without the slightest deviation, in the first of the seven lines for that office.1avvphi1

This gives only two possible impressions. First, that the voters in these two ballots knew in fact where to write the candidates’ names, in which case the votes for respondent written way off its proper place become stray votes. Second, the voters’ manner of voting was a devise to identify the ballots, which renders the ballots invalid. We adopt the more liberal view—that the misplaced votes in Exhibits "9" and "13" are stray votes under Section 211(19), thus, leaving the ballots valid.

Considering that the vote for Teodoro in Exhibit "C" ballot does not even relate to any office, then said misplaced vote is treated as stray.

Thus, to recapitulate, of the five protested ballots, three are properly credited in favor of Bataller while the other two ballots are declared stray votes for Punong Barangay. Consequently, Batalla having garnered a total of 113 votes prevailed by two votes over Bataller, who only garnered an adjusted total of 111 votes (less the two ballots with stray votes, i.e., ballots marked as Exhibits "B" and "C").

WHEREFORE, the petition for certiorari is hereby GRANTED. The assailed Orders of the Comelec First Division and Comelec En Banc, dated April 3, 2008 and August 5, 2008, respectively, are REVERSED and SET ASIDE. The appeal of Ernesto Batalla is given DUE COURSE and the Decision of the MCTC in Bacacay, Albay dated February 12, 2008 is accordingly REVERSED and SET ASIDE. Ernesto Batalla is hereby DECLARED the WINNER for the position of Punong Barangay or Barangay Chairperson of Mapulang Daga, Municipality of Bacacay, Albay during the Barangay Elections held on October 29, 2007.

No pronouncement as to costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING Associate Justice	(On official leave) CONSUELO YNARES-SANTIAGO* Associate Justice
ANTONIO T. CARPIO Associate Justice	RENATO C. CORONA Associate Justice
CONCHITA CARPIO MORALES Associate Justice	MINITA V. CHICO-NAZARIO Associate Justice
ANTONIO EDUARDO B. NACHURA Associate Justice	TERESITA J. LEONARDO-DE CASTRO Associate Justice
ARTURO D. BRION Associate Justice	DIOSDADO M. PERALTA Associate Justice
LUCAS P. BERSAMIN Associate Justice	MARIANO C. DEL CASTILLO Associate Justice

ROBERTO A. ABAD
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes

^* On official leave.

¹ Rollo, p. 29. Per Presiding Commissioner Romeo A. Brawner and Commissioner Moslemen T. Macarambon, Sr.

² Id. at 22-27, per Presiding Judge Marietta Lea B. Rosana.

³ Id. at 38 and 40, per Chairperson Jose A.R. Melo and Commissioners Rene V. Sarmiento, Nicodemo T. Ferrer, Moslemen T. Macarambon, Sr., Leonardo L. Leonida and Lucenito N. Tagle.

⁴ Id. at 16-18, Petition dated October 31, 2007.

⁵ Id. at 27.

⁶ Sec. 240. Election resulting in tie.––Whenever it shall appear from the canvass that two or more candidates have received an equal and highest number of votes, or in cases where to or more candidates are to be elected for the same position and two or more candidates received the same number of votes for the last place in the number to be elected, the board of canvassers, after recording this fact in its minutes, shall by resolution, upon five days notice to all the tied candidates, hold a special public meeting at which the board of canvassers shall proceed to the drawing of lots of the candidates who have tied and shall proclaim as elected the candidates who may be favored by luck, and the candidates so proclaimed shall have the right to assume office in the same manner as if he had been elected by plurality of vote. The board of canvassers shall forthwith make a certificate stating the name of the candidate who had been favored by luck and his proclamation on the basis thereof. Nothing in this section shall be construed as depriving a candidate of his right to contest the election.

⁷ G.R. No. 139489, April 10, 2000, 330 SCRA 229.

⁸ G.R. No. 166931, February 22, 2007, 516 SCRA 447.

⁹ Rollo, p. 28, dated February 22, 2008.

¹⁰ Id. at 30-33, dated April 11, 2008.

¹¹ Id. at 34-37, dated April 30, 2008.

¹² Id. at 39.

¹³ Id. at 7.

¹⁴ Rules of Procedure in Election Cases before the Courts involving Elective Municipal and Barangay Officials, dated May 15, 2007.

¹⁵ Rollo, p. 47, Official Receipt No. 0513533.

¹⁶ Id. at 45.

¹⁷ G.R. No. 142021, November 29, 2000, 346 SCRA 563.

¹⁸ Rollo, pp. 62-69, dated January 22, 2009.

¹⁹ Id. at 48, Resolution dated September 30, 2008.

²⁰ Id. at 82, Resolution dated April 28, 2009.

²¹ G.R. No. 119055, July 10, 1995, 245 SCRA 702; citing Galang v. Court of Appeals, G.R. No. 76221, July 29, 1991, 199 SCRA 683.

²² G.R. No. 124137, March 25, 1997, 270 SCRA 404.

²³ Soller v. Comelec, G.R. No. 139853, September 5, 2000, 339 SCRA 685, 693; Miranda v. Castillo; G.R. No. 126361, June 19, 1997, 274 SCRA 503; Gatchalian v. Court of Appeals, G.R. No. 107979, June 19, 1995, 245 SCRA 208; Pahilan v. Tabalba, G.R. No. 110170, February 21, 1994, 230 SCRA 205.

²⁴ Sec. 3. Appeal Fees. – The appellant in election cases shall pay an appeal fee as follows:

a. Election cases appealed from Regional Trial Courts P1,000.00.

b. Election cases appealed from courts of limited jurisdiction …. P500.00.

In every case, a legal research fee of P20.00 shall be paid by the appellant in accordance with Sec. 4, Republic Act No. 3870, as amended. (Comelec’s Reolution No. 02-0130, issued on September 18, 2002, prescribes P3,000 as appeal fee plus P50 for legal research and P150 for bailiff’s fee.)

²⁵ Sec. 4. Where and When to Pay. - The fees prescribed in Sections 1, 2 and 3 hereof shall be paid to, and deposited with, the Cash Division of the Commission within a period to file the notice of appeal.

²⁶ Comelec Rules of Procedure, Rule 22, Sec. 3.

²⁷ Sec. 9. Grounds for Dismissal of Appeal.––The appeal may be dismissed upon motion of either party or at the instance of the Commission on any of the following grounds:

(a) Failure of the appellant to pay the correct appeal fee.

²⁸ G.R. No. 185140, June 30, 2009.

²⁹ G.R. Nos. 186007 & 186016, July 27, 2009.

³⁰ Entitled "In the Matter of Clarifying the Implementation of COMELEC Rules Re: Payment of Filing Fees for Appealed Cases Involving Barangay and Municipal Elective Positions From the Municipal Trial Courts, Municipal Circuit Trial Courts, Metropolitan Trial Courts and Regional Trial Courts."

³¹ Rollo, p. 41.

³² 6. When two words are written on the ballot, one of which is the first name of the candidate and the other is the surname of his opponent, the vote shall not be counted for either.

³³ Rollo, p. 42.

³⁴ 14. Any vote containing initials only or which is illegible or which does not sufficiently identify the candidate for whom it is intended shall be considered as a stray vote but shall not invalidate the whole ballot.

³⁵ G.R. No. 133840, November 3, 1998, 298 SCRA 480.

³⁶ Rollo, p. 43.

³⁷ Id. at 44.

³⁸ 8. When a name of a candidate appears in a space of the ballot for an office for which he is a candidate and in another space for which he is not a candidate, it shall be counted in his favor for the office for which he is a candidate and the vote for the office for which he is not a candidate shall be considered as stray, except when it is used as a means to identify the voter, in which case, the whole ballot shall be void.

³⁹ Rollo, p. 46.

⁴⁰ Supra note 7.

⁴¹ G.R. No. 167438, July 25, 2006, 496 SCRA 505.

⁴² See Farin v. Gonzales, No. L-36893, September 28, 1973, 53 SCRA 237.

⁴³ Supra note 8, at 455-459.

⁴⁴ HRET Case No. 34, June 16, 1989, 1 HRET Reports 138.

⁴⁵ Under the HRET Rules, the "neighborhood rule" provides:

A vote shall be counted in favor of a claimant where his name is found:

a) On any of the lines for Governor, Vice-Governor, Members of Sangguniang Panlalawigan, Provincial Board Member, Mayor, Vice-Mayor and Members Sangguniang Panlungsod/City Council provided that:

i. the line for Representative is blank;

ii. no other name of a congressional candidate was written on the ballot;

iii. the misplaced vote was not intended as an identifying mark; and

iv. there were no intervening votes between the line for Representative and the line on which the claimant’s name could be found, except when the vote was written on the line for Governor, in which case, this requisite is no longer necessary.

b) On the line for President, provided that:

i. the line for Representative is blank;

ii. no other name of a congressional candidate was written on the ballot;

iii. the misplaced vote was not intended as an identifying mark; and

iv. the lines for Vice-President, Senators and Party-List are also blank.

c) On the line for Vice-President, provided that:

i. the line for Representative is blank;

ii. no other name of a congressional candidate was written on the ballot;

iii. the misplaced vote was not intended as an identifying mark; and

iv. the lines for Senators and Party-List are also blank.

d) On lines 1 and 2 for Senators, provided that:

i. the line for Representative is blank;

ii. no other name of a congressional candidate was written on other lines for Senators in the same ballot; and

iii. the misplaced vote was not intended as an identifying mark.

The HRET also adopted the "Intent Rule," comprising two parts (the "Evident Intent Rule" and "Correct Sequence Rule"), which provides:

A) Evident Intent Rule

Claimed ballots shall be admitted where the name of the party-claimant appeared on any line other than that for Representative, and is preceded by the descriptive title "Congressman" or "Representative," or the word "Congressman" or "Representative" was written on a space immediately followed by the name of a claimant, or with an arrow pointing to the space for Representative subject to the following conditions:

1) the line for Representative is blank, or has an entry which is not a congressional candidate but with an arrow pointing to the appropriate space where the vote should be;

2) no other name of a congressional candidate is written on the ballot; and

3) the misplaced vote was not intended as an identifying mark.

B) Correct Sequence Rule

1) A misplaced name of a congressional candidate may be admitted provided it can be discerned from the sequence of votes or entries that the voter intended to vote for the congressional candidate named therein, provided that:

a) the line for Representative is blank or need not be blank if the voter was not so lettered;

b) no other name of a congressional candidate was written on the ballot; and

c) the misplaced vote was not intended as an identifying mark.

2) Where the name of the party claimant appears below the line or space for Representative/Congressman and is followed by the name of a gubernatorial candidate or the names of the gubernatorial and vice-gubernatorial candidates, respectively, subject to the following conditions:

a) the line for Representative is blank;

b) no other name of a congressional candidate was written on the ballot;

c) the misplaced vote was not intended as an identifying mark; and

d) in case of misplaced names followed by a name of a gubernatorial candidate or by names of a gubernatorial and a Vice-gubernatorial candidates, respectively, the lines for Governor and Vice-Governor are also blank.

3) Where the name of the party claimant appears on other lines, but

a) was preceded by the name of a candidate for Party-List and followed by the name of a candidate for Governor; or

b) was followed by the name of a candidate for Governor and a candidate for Vice-Governor provided that:

i. the line for Representative is blank;

ii no other name of a congressional candidate was written on the ballot; and

iii. the misplaced vote was not intended as an identifying mark.

⁴⁶ Webster’s Third New International Dictionary 1122 (1993).

⁴⁷ Supra note 8.

RELAMPAGOS V. CUMBA (1995)

EN BANC

G.R. No. 118861 April 27, 1995

EMMANUEL M. RELAMPAGOS, petitioner,
vs.
ROSITA C. CUMBA and the COMMISSION ON ELECTIONS, respondents.

DAVIDE, JR., J.:

This special civil action of certiorari under Rule 65 of the Rules of Court revives the issue of whether or not the Commission on Elections (COMELEC) has jurisdiction over petitions for, certiorari, prohibition, and mandamus in election cases where it has exclusive appellate jurisdiction In the split decision of 4 March 1992 in the consolidated cases of Garcia vs. De Jesus and Uy vs. Commission on Elections, ¹ this Court ruled in the negative because of the absence of any specific conferment upon the COMELEC, either by the constitution or by legislative fiat, of jurisdiction to issue such extraordinary writs. It held that jurisdiction or the legal power to hear and determine a cause or causes of action, must exist as a matter of law, whether the jurisdiction is original or appellate, and since these two classes of jursdiction are exclusive of each other, each must expressly conferred by law. One does not flow, nor is inferred, from the other. This Court proceeded to state that in the Philippine setting, the authority to issue the aforesaid writs involves the exercise of original jurisdiction which has always been expressly conferred either by Constitution or by law. It is never derived by implication. Although the Constitution grants the COMELEC appellate jurisdiction, it does not grant it any power to exercise original jurisdiction over petitions for certiorari, prohibition, and mandamus unlike the case of this Court which is specifically conferred with such authority in Section 5(1) of Article VIII. It also pointed out that the doctrines laid down in Pimentel vs. COMELEC ² — that neither the Constitution nor any law has conferred jurisdiction on the COMELEC to issue such writs — still finds application under the 1987 Constitution.

In the decision of 29 July 1992 in Veloria vs. Commission on Elections, ³ this Court reiterated the Garcia and Uy doctrine.

In the challenged resolution at bench, the respondent COMELEC adhered to the affirmative view of the issue, citing as authority therefore its own decision of 29 July 1993 in Dictado vs. Cosico and the last paragraph of Section 50 of B. P. Blg. 697, which reads:

Sec. 50. Definition. —

xxx xxx xxx

The Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari prohibition, and mandamus involving election cases.

The petitioner herein pleads that this resolution be set aside and nullified for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He contends that while the COMELEC's position is inherently compelling, it deserves scant consideration in view of Garcia and Uy and Veloria and the nature and purpose of B. P. Blg. 697 which was to govern solely the Batasang Pambansa election of 14 May 1984; hence, it was a temporary statute which self-destructed after such election.

The antecedent facts that led to the filing of this action are uncomplicated and undisputed.

In the synchronized elections of 11 May 1992, the petitioner and private respondent Rosita Cumba were candidates for the position of Mayor in the municipality of Magallanes, Agusan del Norte. The latter was proclaimed the winning candidate, with a margin of only twenty-two votes over the former.

Unwilling to accept defeat, the petitioner filed an election protest with the Regional Trial Court (RTC) of Agusan del Norte, which was assigned to Branch 2 thereof in Butuan City.

On 29 June 1994, the trial court, per Judge Rosario F. Dabalos, found the petitioner to have won with a margin of six votes over the private respondent and rendered judgement in favor of the petitioner as follows:

WHEREFORE, in view of the foregoing results, the court hereby declares the protestant as having won the mayoralty election and as duly elected Mayor of the Municipality of Magallanes, Agusan del Norte in the local election held on May 11, 1992, the protestant having obtained six (6) votes more than that of the protestee's votes.

Copies of the decision were sent to and received by the petitioner and the private respondent on 1 July 1994.

On 4 July 1994, the private respondent appealed the decision to the COMELEC by filing her notice of appeal and paying the appellate docket fees.

On 8 July 1994, the trial court gave due course to the appeal.

On 12 July 1994, the petitioner filed with the trial court a motion for execution pending appeal, which the private respondent opposed on 22 July 1994.

On 3 August 1994, the trial court granted the petitioner's motion for execution pending appeal. The corresponding writ of execution was forthwith issued. Thereafter, the private respondent filed a motion for a reconsideration of the order of execution and the sheriff held in abeyance the implementation of the writ. This motion was denied on 5 August 1994.

The private respondent then filed with the respondent COMELEC a petition for certiorari to annul the aforesaid other of the trial court granting the motion for execution pending appeal and the writ of execution. The petition was docketed as SPR No. 1-94.

On 9 February 1995, the COMELEC promulgated its resolution granting the petition. ⁴ The dispositive portion thereof reads as follows:

WHEREFORE, premises considered, the Commission RESOLVES that is [sic] has exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus in election cases as authorized by law, and therefore, assumes jurisdiction of the instant petition for certiorari which is hereby GRANTED. The Order of the court a quo of August 3, 1994 is hereby declared NULL and VOID and the Writ of Execution issued on August 4, 1994 LIFTED.

Accordingly, petitioner Rosita Cumba is ordered restored to her position .as Municipality Mayor of Magallanes, Agusan del Norte, pending resolution of the appeal before this Commission in the case of Relampagos vs. Cumba in EAC No. 108-94.

In upholding its jurisdiction in certiorari, prohibition, and mandamus cases, the respondent COMELEC maintains that there is a special law granting it such jurisdiction, viz., Section 50 of B.P. Blg. 697, which remains in full force as it was not expressly repealed by the Omnibus Election Code (B.P. Blg. 881),and that it is not exactly correct that this law self-destructed after the May 1984 election. It further reasoned out that in the performance of its judicial functions, the COMELEC, is the most logical body to issue the extraordinary writs of certiorari, prohibition and mandamus in election cases where it has appellate jurisdiction. It ratiocinated as follows:

It is therefore clear that if there is a law which specifically confers jurisdiction to issue the prerogative Writs, then the Commission has jurisdiction.

Such a law exists. Section 50, B.P. Blg. 697 is that law.

B.P. Blg. 697, approved on March 14, 1984, is entitled "AN ACT TO GOVERN THE ELECTION OF MEMBERS OF THE BATASANG PAMBANSA ON MAY 14, 1984 AND THE SELECTION OF SECTORAL REPRESENTATIVES THEREAFTER, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES. Section 50 provides:

Sec. 50. Definition.— Pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the Board of Canvassers which may be raised by any candidate, political party or coalition of political parties before the board or directly with the Commission.

The Commission Elections shall be the sole judge and shall have exclusive jurisdiction over all pre-proclamation controversies.

The Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases.(Emphasis supplied).

We have debated among ourselves whether Section 50, B.P. Blg. 697, has been repealed. We have come to the conclusion that it has not been repealed. The repealing provision in the Omnibus Election Code (BP Blg. 881, December 3, 1985), provides:

Sec. 282. Repealing Clause. — Presidential Decree No. 1296 otherwise known as the The 1978 Election Code, as amended, is hereby repealed. All other election Laws, decrees, executive orders, rules and regulations or parts thereof, inconsistent with the provisions of this Code is hereby repealed, except Presidential Decree No. 1618 and Batas Pambansa Blg. 20 governing the election of the members of the Sangguniang Pampook of Regions IX and XII. (Emphasis supplied).

B.P. Blg. 697 has not been expressly repealed, and Section 50 thereof is not inconsistent with the provisions of the Omnibus Election Code. Besides, in the cited Garcia/Uy cases, as reiterated in the Veloria case, the Supreme Court itself said, reiterating previous cases, that implied repeal of statutes is frowned upon, thus:

Just as implied repeal of statutes frowned upon, so also should the grant of original jurisdiction by mere implication to a quasi-judicial body be tabooed. (Garcia/Uy/Veloria Cases: Emphasis supplied).

xxx xxx xxx

It is equally clear that Executive Order No. 90 . . . did not modify or repeal, whether expressly or impliedly, Section 23 of P.D. No. 1752. It is common place Learning that implied repeal are not favored in Law and are not casually to be assumed. The first effort of a court must always be to reconcile or adjust the provisions of one statute with those of another so as to give sensible effect to both provisions (Jalandoni vs. Andaya, 55 SCRA 261 (1974); Villegas vs. Subido, 41 SCRA 190, 196-197 (1971); National Power Corporation vs. ARCA, 25 SCRA 931 (1968); U.S. vs. Palacios, 33 Phil. 208 (1916); and Iloilo Palay and Corn Planters Association, Inc. vs. Feliciano, 13 SCRA 377·(1965). Only when there is clear inconsistency and conflict between the provisions of two (2) statutes, may a court hold that the provisions later in point of time have impliedly repealed the earlier ones" that (Philippine American Management Co., Inc., vs. Philippine American Management Employees Association, 49 SCRA 194 (1973); and Villegas vs. Subido, 41 SCRA 190 (1971) (Larga vs. Ranada, Jr., No. L-7976, August 3, 1984, 164 SCRA 25).

It was even suggested that Batas Pambansa Blg. 697 self-destructed after the Batasang Pambansa elections of 1984; because of the provisions of Section 1 (Title and Applicability) which provides: "This act shall be known and cited as "The Law on the 1984 Batasang Pambansa Election." It shall govern the election for the regular Batasang Pambansa which shall be held on May 14, 1984, and the selection of sectoral representatives thereafter as provided by the Constitution.

While that may be true with most of its provisions which were applicable only for the particular election (like election and campaign periods, voting constituency, etc.) most if not all of the remaining provisions could be applicable to future elections. It is not lost to the Commission that B.P. Blg. 697 was passed also "for other purposes."

But the important consideration is that the authority granted to the Commission under B.P. Blg. 697 is not inconsistent with our election laws. It should be mentioned that the provisions of Republic Act No. 6638 which governed the local elections of January 18, 1988, as to the number of councilors in specified cities (Sec. 3) and the number of Sangguniang members in different provinces and cities (Sec. 4) are still applicable up to this day. In fact, it became one of the important controlling provision which governed the May 11, 1992 elections. If provisions of Republic Act No. 6636 which are not inconsistent with the present election laws did not self-destruct, why should Section 50 of B.P. Blg. 697?

Another provision which did not self-destruct is that which provides that "any city or municipal judge, who includes or excludes any voter without any legal basis in inclusion and exclusion proceedings, shall be guilty of an election offense," although this provision is found in Section 10 of Executive Order No. 134 supposedly with limited application as the enabling act for the elections for Members of Congress on May 11, 1987 and for other purposes.

Clearly the intent of the law, was to give certiorari, jurisdiction to the Commission on Elections because the Pimentel case said there was none, to fill a void in the law, and avoid an incongruous situation.

A statute's clauses and phrases must not be taken separately but in its relation to the statute's totality. Each statute must, in fact, be construed as to "harmonized it with the pre-existing body of laws." Unless clearly repugnant, provisions of statutes must be reconciled. . . . (Commissioner of Customs vs. ESSO Standard Eastern, Inc. L-28329, August 7, 1975, 66 SCRA 113).

xxx xxx xxx

The statutory construction rule is: "When the Legislature enacts provision, it is understood that it is aware of previous statutes relating to the same subject matter and that in the absence of any express repeal or amendment therein, the new provision should be deemed enacted pursuant to the legislative policy embodied in the prior statutes." (Legaspi vs. Executive Secretary, L-36153, November 28, 1975, 68 SCRA 253).

The Commission is the most logical body whenever it performs judicial functions to take jurisdiction of petitions for certiorari, prohibition and mandamus because it has appellate jurisdiction in election cases granted by the Constitution itself. The Court of Appeals has no more appellate jurisdiction over such cases And in the case of the Supreme Court, Justice de Castro in the Pimentel case pointed out, in his dissenting opinion that under the Constitution the certiorari jurisdiction of the Supreme Court in election cases should properly be limited to decisions, orders or rulings of the Commission on Elections, not from lower courts.

It was of course different under the Election Code of 1971 (R.A. No. 6388, September 2, 1971) because the Supreme Court and the Court of Appeals then had appellate jurisdiction in election case decided by the lower courts.

In the Veloria case, it now appears that only the Supreme Court and the Court of Appeals have certiorari jurisdiction over election cases from the lower courts because after reiterating the ruling in the Garcia and Uy cases, the Supreme Court said:

In view of this pronouncement, an original civil action of certiorari, prohibition or mandamus against a regional trial court in an election contest may be filed only in the Court of Appeals or in this Court being the only courts given such original jurisdiction under the Constitution and the Law. (Emphasis supplied).

While these two appellate Courts do have the jurisdiction under the Constitution and the law, it is most logical for the Commission whenever it performs judicial functions to have the authority to issue these prerogative writs. . . .

. . .

In traversing the first issue, we are citing our decision laid down in the case of Antonio Dictado vs. Hon. Rodrigo N. Cosico and Emilio Tiongco promulgated on July 29, 1993. In this case, the Commission en banc had occasion to rule on the question of whether or not the Commission has the authority to hear and decide petitions for certiorari in election cases.

The Commission En Banc, speaking through Hon. Commissioner Regalado E. Maambong, ruled that there is [a] law which grants the Commission, the exclusive authority to issue special writs of certiorari, prohibition and mandamus in election cases, and there are also Supreme Court decisions, recent in fact, which declare that the Commission has no such authority precisely because; according to the decisions, there is no law granting such authority, and without any hint whatsoever of the existence of Sec. 50 of Batas vs. Pambansa Blg. 697.

As gleaned from the case of Dictado, respondents were arguing that Sec. 50 of BP Blg. 697 was repealed by the Omnibus Election Code (BP Blg. 881, December 3, 1985). Furthermore, in their answer, respondents cited Supreme Court decisions where it was declared that, indeed, the Commission has no jurisdiction to issue special writs of certiorari, prohibition and mandamus in aid of its appellate jurisdiction.

It is still the position of this Commission that Sec. 50, BP Blg. 697 has not been repealed.

As defined in the Constitution, "Judicial power" includes the duty of the Courts of Justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess, of jurisdiction on the part of any branch or instrumentality of the government (Sec. 1, par. 2, Art. VII).

Since the COMELEC, in discharging its appellate jurisdiction pursuant to Sec. 2 (2), Art. IX-C, acts as a court of justice performing judicial power and said power includes the determination of whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction, it necessarily follows that the Comelec, by constitutional mandate, is vested with jurisdiction to issue writs of certiorari in aid of its appellate jurisdiction. ⁵

It set aside, for having been issued with grave abuse of discretion, the trial court's order of execution pending appeal and the writ of execution because

[a]t the time the Motion for Execution Pending Appeal was filed on July 12, 1994 the court a quo had already lost jurisdiction over the case for as early as July 8, 1994, it had already acknowledged through its order issued on that date, the perfection of the appeal of petitioner as in fact it ordered the elevation of the records of the case to this Honorable Commission. ⁶

Aggrieved by the resolution, the petitioner filed the instant special civil action.

In the resolution of 21 February 1985, the Court required the respondents to comment on the petition and issued a temporary restraining order enjoining the respondent COMELEC to cease and desist from enforcing is challenged resolution.

As naturally expected, the private respondent, in her Comment, opposed the petition by invoking the very arguments adduced by the respondent COMELEC in its challenged the resolution and the dissenting opinion in the Garcia and Uy cases.

In its comment filed by the Office of the Solicitor General, the respondent COMELEC postulates that it issued the said resolution after it had taken cognizance of the appeal interposed by the private respondent from the RTC decision, unlike in the Garcia and Uy cases, and therefore, in the exercise of its appellate jurisdiction, thus:

it cannot be gainsaid that [it] possesses inherent powers to employ means necessary to carry into effect the powers conferred upon it by law (Sec. 6, Rule 135 of the Revised Rules of Court) and verily, there was no need for any statutory grant for that purpose. Indeed, in annulling the Order of Execution of the Regional Trial Court, public respondent did not exceed its jurisdiction since its action in this regard was necessary to preserve the subject of the appeal and to maintain the status quo of the parties pending the final outcome of its review of the correctness of the appealed decision. ⁷

It tried to show that in Pimentel and Garcia, the trial courts still had jurisdiction over the cases unlike in the instant case where the trial court had already given due course to the appeal and elevated the records of the case to the COMELEC which had taken cognizance of the appeal.

This Court resolved to give due course to this petition and to decide it on its merits.

The contention of the respondent COMELEC as advanced by the Office of the Solicitor General is unacceptable. It goes against its theory in the assailed resolution and is not supported by the facts. The challenged resolution involves a case which the COMELEC docketed as a special relief case (SPR. No. 1-94). Under Rule 28 of its Rules of Procedure, the special relief cases are petitions for certiorari, prohibition, mandamus, and contempt proceedings. The ordinary appeal from the RTC decision was, as disclosed in the challenged resolution; docketed as EAC No. 108-94. ⁸ Clearly then, the COMELEC had recognized and taken cognizance of two cases: one, the ordinary appeal from the RTC decision (EAC No. 108-94), and two, the special civil action for certiorari docketed as SPR No. 1-94. The two cases were not consolidated. The dissimilarities between them need no further elaboration. Since it issued the challenged resolution under the latter case, it cannot now be heard to state that it issued it as an incident in the former, the ordinary appeal. This erroneous contention of the Office of the of the Solicitor General notwithstanding, the position taken by the COMELEC in its resolution now in question paves the way for a re-examination of this Court's pronouncement in the Garcia and Uy cases.

As earlier stated, in Garcia and Uy, ⁹ and later, in Veloria, ¹⁰ this Court ruled that the COMELEC has no jurisdiction over the extraordinary writs of certiorari, prohibition, and mandamus because there is no specific constitutional or statutory conferment to it of such jurisdiction.

The respondent COMELEC, however, points out that Section 50 of B.P. Blg. 697 expressly granted it such jurisdiction. Indeed, it did. Nevertheless, considering that the said law was, per Section 1 thereof, "to govern the election for the regular Batasang Pambansa which shall be held on May 14, 1984, and the selection of sectoral representatives thereafter as provided by the Constitution," and in view of the passage of the Omnibus Election Code (B.P. Blg. 881) by the regular Batasang Pambansa, ¹¹ this Court is then confronted with the twin issues of whether said B.P. Blg. 697 became functus officio after the 14 May 1984 election of members of the regular Batasang Pambansa or the selection thereafter of the sectoral representatives at the latest, and whether it was repealed by the Omnibus Election Code.

The Court agrees with the respondent COMELEC that there are provisions in B.P. Blg. 697 whose lifetime go beyond the 14 May 1984 election or the subsequent selection of sectoral representatives. In fact, by the very wording of the last paragraph of its Section 50, to: wit:

Sec. 50. Definition. —

xxx xxx xxx

The Commission is hereby vested with the exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases. (Emphasis supplied).

it is quite clear that the exercise of the power was not restricted within a specific period of time. Taken in the context of the conspicuous absence of such jurisdiction as ruled in Pimentel vs. Commission on Elections, ¹² it seems quite obvious that the grant was intended as a remedial legislation to eliminate the seeming incongruity or irrationality resulting in a splitting of jurisdiction pointed out in the dissenting opinion of Justice De Castro in the said case.

But did not the Omnibus Election Code (B.P. Blg. 881) repeal B.P. Blg. 697? The repealing clause of the latter reads as follows:

Sec. 282. Repealing clause. — Presidential decree No. 1296, otherwise known as The 1978 Election Code, as amended, is hereby repealed. All other election laws, decrees, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions of this Code are hereby repealed, except Presidential Decree No. 1618 .and Batas Pambansa Blg. 20 governing the election of the members of the Sangguniang Pampook of Regions IX and XII.

The second sentence is in the nature of a general repealing clause. It has been said:

An express general repealing clause to the effect that. all inconsistent enactments are repealed; is in legal contemplation a nullity. Repeals must either be expressed or result by implication. Although it has in some instances been held to be an express recognition that there are acts in conflict with the act in which it is included and as indicative of the legislative intent to repeal such acts, a general repealing clause cannot be deemed an express repeal because it fails to identify or designate any act to be repealed. It cannot be determinative of an implied repeal for if does not declare any inconsistency but conversely, merely predicates a repeal upon the condition that a substantial conflict is found under application of the rules of implied repeals. If its inclusion is more than mere mechahical verbiage, it is more often a detriment than an aid to the establishment of a repeal, for such clause is construed as an express limitation of the repeal to inconsistent acts. ¹³

This Court is not unaware of the equally settled rule in statutory construction that in the revision or codification of laws, all parts and provisions of the old laws that are omitted in the revised statute or code are deemed repealed, unless the statute or code provides otherwise expressly or impliedly. ¹⁴

By the tenor of its aforequoted Repealing Clause, it does not evidently appear that the Batasang Pambansa had intended to codify all prior election statutes and to replace them with the new Code. It made, in fact, by the second sentence, a reservation that all prior election statutes or parts thereof not inconsistent with any provisions of the Code shall remain in force. That sentence

predicates the intended repeal upon the condition that a substantial conflict must be found on existing and prior acts of the same subject matter. Such being the case, the presumption against implied repeals and the rule on strict construction regarding implied repeals apply ex proprio vigore. For the legislature is presumed to know the existing laws so that, if repeal of particular or specific law or laws is intended, the proper step is to express it. The failure to add a specific repealing clause particularly mentioning the statute to be repealed indicates that the intent was not to repeal any existing law on the matter, unless an irreconcilable inconsistency and repugnancy exist in the terms of the new and the old laws. ¹⁵

This being the case, the Court painstakingly examined the aforesaid last paragraph of Section 50 of the Omnibus Election Code to determine if the former is inconsistent with any of the provisions of the latter, It found none.

In the face of the foregoing disquisitions, the Court must, as it now does, abandon the ruling in the Garcia and Uy and Veloria cases, We now hold that the last paragraph of Section 50 of B.P. Blg. 697 providing as follows:

The Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases.

remains in full force and effect but only in such cases where, under paragraph (2), Section 1, Article IX-C of the Constitution, it has exclusive appellate jurisdiction. Simply put, the COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition, and mandamus only in aid of its appellate jurisdiction.

The jurisdiction of the COMELEC having been settled, we now proceed to review the substance of the challenged resolution.

That the trial court acted with palpable and whimsical abuse of discretion in granting the petitioner's motion for execution pending appeal and in issuing the writ of execution is all too obvious. Since both the petitioner and the private respondent received copies of the decision on 1 July 1994, an appeal therefrom may be filed within five days ¹⁶ from 1 July 1994, or on or before 6 July 1994. Any motion for execution pending appeal must be filed before the period for the perfection of the appeal. Pursuant to Section 23 of the Interim Rules Implementing B.P. Blg. 129, which is deemed to have supplementary effect to the COMELEC Rules of Procedures pursuant to Rule 43 of the latter, an appeal would be deemed perfected on the last day for any of the parties to appeal, ¹⁷ or on 6 July 1994. On 4 July 1994, the private respondent filed her notice of appeal and paid the appeal fee. On 8 July 1994, the trial court gave due course to the appeal and ordered the elevation of the records of the case to the COMELEC. Upon the perfection of the appeal, the trial court was divested of its jurisdiction over the case. ¹⁸ Since the motion for execution pending appeal was filed only on 12 July 1994, or after the perfection of the appeal, the trial court could no longer validly act thereon. It could have been otherwise if the motion was filed before the perfection of the appeal. ¹⁹ Accordingly, since the respondent COMELEC has the jurisdiction to issue the extraordinary writs of certiorari, prohibition, and mandamus, then it correctly set aside the challenged order granting the motion for execution pending appeal and writ of execution issued by the trial court.

WHEREFORE, the instant petition is DENIED and the challenged resolution of 9 February 1995 of the Commission on Elections in SPR No. 1-94 entitled "Rosita Cumba vs. Manuel M. Relampagos, et al. " is AFFIRMED.

The temporary restraining order issued on 21 February 1995 is hereby LIFTED.

No pronouncemnt as to costs.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Romero, Bellosillo, Quiason, Puno, Vitug, and Mendoza, JJ., concur.

Regalado, J., concurs in the result.

Melo, Kapunan and Francisco, JJ., are on leave.

Footnotes

1 G.R. No. 88158 and G.R. No. 97108-09, respectively, 206 SCRA 779 [1992]. The voting was 7-6. Per Melencio-Herrera, J., with the concurrence of Cruz (who wrote a separate opinion), Padilla, Griño-Aquino, Regalado, Romero, and Nocon, JJ.; and with Bidin, J., dissenting, with whom Narvasa, C. J., Gutierrez, Jr., Feliciano, Medialdea, and Davide, Jr., JJ., concur. Paras, J.; took no part.

2 101 SCRA 769 [1980].

3 211 SCRA 907 [1992].

4 Annex "H" of Petition; Rollo, 20-43. By a 4-2 vote.

5 Rollo, 25-30, 39-41.

6 Id., 41.

7 Rollo, 67 et seq.

8 Dispositive portion of the Resolution; Rollo, 42. EAC is the docket designation for appealed cases, while SPR is for special relief cases (Section 4, Rule 7, to COMELEC Rules of Procedure).

9 Supra note 1.

10 Supra note 3.

11 Passed on 28 November 1985 and approved on 3 December 1985.

12 Supra note 2.

13 C. DALLAS SANDS, Sutherland, Statutes and Statutory Construction. §23.08 (Vol. 14, 4th ed. 1972).

14 RUBEN E; ACPALO, Statutory Construction 284 [2nd ed. 1990], citing People vs. Benuya, 61 Phil. 208 [1935].

15 AGPALO, op. cit., at 292, citing Iloilo Palay and Corn Planters Assn., Inc. vs. Feliciano, 13 SCRA 377 [1965]; City of Naga vs. Agna, 71 SCRA 176 [1976].

16 Section 3, Rule 22, in relation to Section 20, Rule 35, COMELEC Rules of Procedure.

17 Bank of the Philippine Islands vs. East Molasses Corp., 198 SCRA 689 [1991].

18 Fortune Life & General Insurance Co., Inc. vs. Court of Appeals, 224 SCRA 829 [1993].