Canicosa vs.

COMELEC
GRN 120318; December 5, 1997
RICARDO "BOY" CANICOSA and SEVERINO LAJARA were candidates for may
or in Calamba, Laguna, during the 8 May 1995 elections. After obtaining a
majority of some 24,000 votes1 Lajara was proclaimed winner by the
Municipal Board of Canvassers. On 15 May 1995 Canicosa filed with the
Commission on Elections (COMELEC) a Petition to Declare Failure of Election
and to Declare Null and Void the Canvass and Proclamation because of
alleged widespread frauds and anomalies in casting and counting of votes,
preparation of election returns, violence, threats, intimidation, vote buying,
unregistered voters voting, and delay in the delivery of election documents
and paraphernalia from the precincts to the Office of the Municipal Treasurer.
Canicosa particularly averred that: (a) the names of the registered voters did
not appear in the list of Newts in their precincts: (b) more than onehalf of the
legitimate registered voters were notable to vote with strangers voting in
then, stead: (c) he was credited with less votes than he actually received: (d)
control data of the election returns was not filled up in some precincts; (e)
ballot boxes brought to the Office of the Municipal Treasurei were unsecured,
i.e., without padlocks nor selflocking metal seals: and, (f) there was delay in
the delivery, of election returns. But the COMELEC en banc, dismissed the
petition on the ground that the allegations therein did not justify a
declaration of failure of election.
Indeed, the grounds cited by Canicosa do not warrant a declaration of failure
of election. Section 6 of BP Blg. 881, otherwise known as the Omnibus
Election Code, reads:
Sec. 6. Failure of election. - If on account of force majeure, violence,
terrorism, fraud, or other analogous causes the election in any polling place
has not been held on the date fixed, or had been suspended before the hour
fixed by law for the closing of the voting or after the voting and during the
preparation and the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the
election, the Commission shall. on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a failure
to elect on a date reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or suspension of the
election or failure to elect.
Clearly, there are only three (3) instances where a failure of election may be
declared. namely: (a) the election in any polling place has not been held on
the (late fixed on account of force majeure, violence, terrorism, fraud, or

other analogous causes; (b) the election in any polling place had been
suspended before the hour fixed by law for the closing of the voting on
account of force majeure, violence, terrorism, fraud, or other analogous
causes; or (c) after the voting and during the preparation and transmission of
the election returns or in the custody or canvass thereof, such election
results in a failure to elect on account of force majeure, violence, terrorism,
fraud, or other analogous causes.
None of the grounds invoked by Canicosa falls under any of those
enumerated.
Canicosa bewails that the names of the registered voters in the various
precincts did not appear in their respective lists of voters. But this is not a
ground to declare a failure of election. The filing of a petition for declaration
of failure of election therefore is not the proper remedy. The day following
the last day for registration of voters. the poll clerk delivers a certified list of
voters to the election registrar, election supervisor and the COMELEC, copies
of which are open to public inspection. On the same day, the poll clerk posts
a copy of the list of registered voters in each polling place. Each member of
the board of election inspectors retains a copy of the list which may be
inspected by the public in their residence or in their office during office
hours.2
Fifteen (15) days before the regular elections on 8 May 1995 the final list of
voters was posted in each precinct pursuant to Sec. 148 of RA No. 7166.
Based on the lists thus posted Canicosa could have filed a petition for
inclusion of registered voters with the regular courts. The question of
inclusion or exclusion from the list of voters involves the right to vote3 which
is not within the power and authority of COMELEC to rule upon. The
determination of whether one has the right to vote is a justiciable issue
properly cognizable by our regular courts. Section 138, Art. XII, of the
Omnibus Election Code states:
Sec. 138. Jurisdiction in inclusion and exclusion cases. - The municipal and
metropolitan trial courts shall have original and exclusive jurisdiction over all
matters of' inclusion and exclusion of voters from the list in their respective
municipalities or cities. Decisions of the municipal or metropolitan trial courts
may be appealed directly by the aggrieved party to the proper regional trial
court within five days from receipts of notice thereof', otherwise said decision
of the municipal or metropolitan trial court shall decide the appeal within ten
days from the time the appeal was received and its decision shall be
immediately final and executory. No motion for reconsideration shall be
entertained by the courts (Sec. 37, PD 1896, as amended).
On the other hand, Canicosa could have also filed with the COMELEC a
verified complaint seeking the annulment of the book of voters pursuant to

Sec. 10, of RA No. 7166:

Sec. 10. Annulment of the List of Voters. - Any book of voters the preparation
of which has been affected with fraud, bribery, forgery, impersonation,
intimidation, force or any other similar irregularity or which is statistically
improbable may be annulled after due notice and hearing by the Commission
motu propio or after the filing of a verified complaint: Provided, that no order.
ruling or decision annulling a book of voters shall be executed within sixty
(60) days before an election.
If indeed the situation herein described was common in almost all of the 557
precincts as alleged by Canicosa,4 then it was more expedient on his part to
avail of the remedies provided by law in order to maintain the integrity of the
election, Since Canicosa failed to resort to any of the above options, the
permanent list of voters as finally corrected before the election remains
conclusive on the question as to who had the right to vote in that election,
although not in subsequent elections.5
Canicosa also avers that more than one-half (1/2) of the legitimate registered
voters were not able to vote, instead, strangers voted in their behalf. Again,
this is not a ground which warrants a declaration of failure of election.
Canicosa was allowed to appoint a watcher in every precinct. The watcher is
empowered by law to challenge any illegal voter, Thus, Sees. 199 and 202,
Art. XVII, of the Omnibus Election Code, provide:
Sec. 199. Challenge of illegal voters. - (a) Any voter, or watcher may
challenge any person offering to vote for not being registered, for using the
name of another or suffering from existing disqualification. In such case, the
board of election inspectors shall satisfy itself as to whether or not the
ground for the challenge is true by requiring proof of registration or identity
of the voter x x x
Sec. 202. Record of challenges and oaths. - The poll clerk shall keep a
prescribed record of challenges and oaths taken in connection therewith and
the resolution of the board of election inspectors in each case and, upon the
termination of the voting, shall certify that it contains all the challenges
made x x x
The claim of Canicosa that he was credited with less votes than he actually
received and that the control data of the election returns was not filled up
should have been raised in the first instance before the board of election
inspectors or board of canvassers. Section 179, Art. XV of the Omnibus
Election Code clearly provides for the rights and duties of watchers Sec. 179.
Rights and duties of watchers. - x x x The watchers x x x shall have the right
to witness and inform themselves of the proceedings of the board of election
inspectors x x x to file a protest against any irregularity or violation of law

which they believe may

have been committed by the board of election inspectors or by any of its
members or by any persons, to obtain from the board of election inspectors a
certificate as to the filing of such protest and/or of the resolution thereon x x
x and to be furnished with a certificate of the number of votes in words and
figures cast for each candidate, duly signed and thumbmarked by the
chairman and all the members of the board of election inspectors x x x
To safeguard and maintain the sanctity of election returns, Sec. 2 12, Art.
XVIII, of the Omnibus Election Code states Sec. 212. Election returns. - x x x
Immediately upon the accomplishment of the election returns, each copy
thereof shall be sealed in the presence of the watchers and the public, and
placed in the proper envelope, which shall likewise be sealed and distributed
as herein provided.
Furthermore, it is provided in Sec. 215 of the Omnibus Election Code that
Sec. 215. Board of election inspectors to issue a certificate of the number of
totes polled by the candidates for cut office to the watchers. - After the
announcement of the results of the election and before leaving the polling
place, it shall be the duty of the board of election inspectors to issue a
certificate of the number of votes received by a candidate upon request of
the watchers. All members of the board of election inspectors shall sign the
certificate.
Supplementing the preceding provisions, Secs. 16 and 17 of RA No. 6646
also require
Sec. 16. Certification of totes, - After the counting of the votes cast in the
precinct and announcement of the results of the election, and before leaving
the polling place, the board of election inspectors shall issue a certificate of
votes upon request of the duly accredited watchers x x x
Sec. 17. Certificate of Votes as Evidence. - The provisions of Secs. 235 and
236 of Batas Pambansa Blg. 881 notwithstanding. the certificate of votes
shall be admissible in evidence to prove tampering, alteration, falsification or
anomaly committed in the election returns concerned x x x
From the foregoing provisions, it is clear that in case of inconsistency as to
the number of votes written in the election returns and the certificate of
votes, a petition for correction of election returns must immediately be filed
with COMELEC by all or a majority of the members of the board of election
inspectors or any candidate affected by the error or mistake. In order to
make out a case for correction of election returns, there must be an error and
at least a majority of the members of the board of election inspectors agrees
that such error existed. Canicosa never mentioned that he petitioned for the

correction of the election returns before the COMELEC.

Canicosa complains that the election returns were delivered late and the
ballot boxes brought to the Office of the Municipal Treasurer unsecured, i.e.,
without padlocks nor self-locking metal seals. These bare allegations cannot
impel us to declare failure of election, Assuming that the election returns
were delivered late, we still cannot see why we should declare a failure to
elect. The late deliveries did not convert the election held in Calamba into a
mockery or farce to make us conclude that there was indeed a failure of
election.
In fine, the grounds cited by Canicosa in his petition do not fall under any of
the instances enumerated in Sec. 6 of the Omnibus Election Code. In Miming
v. Commission on Elections 6 we ruled that before COMELEC can act on a
verified petition seeking to declare a failure of election, at least two (2)
conditions must concur: (a) no voting has taken place in the precincts on the
date fixed by law, or even if there was voting, the election nevertheless
resulted in failure to elect; and, (b) the votes that were not cast would affect
the result of the election. From the face of the instant petition, it is readily
apparent than an election took place and that it did not result in a failure to
elect.7
Canicosa finally insists that it was error on the part of COMELEC sitting en
banc to rule on his petition. He maintains that his petition should have first
been heard by a division of COMELEC and later by the COMELEC en banc
upon motion for reconsideration, pursuant to Sec. 3, Art. IX-C, of the
Constitution.8
But this provision applies only when the COMELEC acts in the exercise of its
adjudicatory or quasi-judicial functions and not when it merely exercises
purely administrative functions. To reiterate, the grounds cited by Canicosa in
his petition are that: (a) the names of the registered voters did not appear in
the list of voters in their respective precincts; (b) more than one-half of the
legitimate registered voters were not able to vote with strangers voting in
their stead; (c) he was credited with less votes than he actually received; (d)
the control data of the election returns was not filled up in some precincts;
(e) ballot boxes brought to the Office of the Municipal Treasurer were
unsecured, i. e., without padlocks nor self-locking metal seals; and, (f) there
was delay in the delivery of election returns.
Clearly, all these matters require the exercise by the COMELEC of its
administrative functions. Section 2, Art. IX-C, of the 1987 Constitution grants
extensive administrative powers to the COMELEC with regard to the
enforcement and administration of all laws and regulations relative to the
conduct of elections. Likewise, Sec. 52 of BP Blg. 88 1, otherwise known as
the Omnibus Election Code, states:

Sec. 52. Powers and functions of the Commission on ElectionsIn addition to

the powers and functions conferred upon it by the Constitution, the
Commission shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections for the purpose
of ensuring free, orderly and honest elections x x x Quite obviously, it is only
in the exercise of its adjudicatory or quasijudicial powers that the COMELEC
is mandated to hear and decide cases first by Division and then, upon motion
for reconsideration, by the COMELEC en banc. This is when it is jurisdictional.
In the instant case. as aforestated, the issues presented demand only the
exercise by the COMELEC of its administrative functions.
The COMELEC exercises direct and immediate supervision and control over
national and local officials or employees, including members of any national
or local law enforcement agency and instrumentality of the government
required by law to perform duties relative to the conduct of elections. Its
power of direct supervision and control includes the power to review. modify
or set aside any act of such national and local officials.9It exercises
immediate supervision and control over the members of the boards of
election inspectors and canvassers. Its statutory power of supervision and
control includes the power to revise, reverse or set aside the action of the
boards, as well as to do what the boards should have done. even if questions
relative thereto have not been elevated to it by an aggrieved party, for' such
power includes the authority to initiate motu propio or by itself such steps or
actions as may be required pursuant to law.10
Specifically, Canicosa alleged that he was credited with less votes than he
actually received. But he did not raise any objection before the Municipal
Board of Canvassers; instead, he went directly to the COMELEC. He now
claims, after the COMELFC en banc dismissed his petition, that it was error
on the part of COMELEC to rule on his petition while sitting en banc.
We have already disposed of this issue in Castromayor v. Commission on
Elections 11 thus It should be pinpointed out. in this connection, that what is
involved here is a simple problem of arithmetic. The Statement of Votes is
merely a tabulation pet precinct of the votes obtained by the candidates as
reflected in the election returns. In making the correction in cornputation, the
MBC will he acting in an administrative capacity. under the control and
supervision of the COMELEC. Hence. any question pertaining to the
Proeedings of the MBC may be raised directly to the COMELEC en banc in the
exercise of its constitutional function to decide questions affecting elections.
Moreover. it is expressly provided in Rule 27, Sec. 7, of the Comelec Rules of
Procedure that any party dissatisfied with the ruling of the board of
canvassers shall have a right to appeal to the COMELEC en banc:

Sec. 7. Corretion of Errors or Tabulation of Tallying of Results by the Board of

Canvassers. - (a) Where it is clearly shown before proclamation that manifest
errors were committed in the tabulation or tallying or election returns, or
certificates of canvass, doling the canvassing as where (1) a copy of the
election returns of one precinct or two or more copies of a certificate of
canvass were tabulated more than once, (2) two copies of the election
returns or certificate of canvass were tabulated separately, (3) there was a
mistake in the adding or copying of the figures into the certificate of canvass
or into the statement of votes by precinct, or (4) so-called election returns
front non-existent precincts were included in the canvass, the board may
motu propio, or upon verified petition by any candidate. political party
organization or coalition of political parties. after due notice and hearing
correct the errors commited x x x. (h) The appeal shall be heard and decided
by the Commission en banc.
In Tatlonghari v. Commission on Elections12 it was made to appear in the
Certificate of Canvass of Votes and Proclamation of the Winning Candidates
that respondent therein received 4,951 votes or more than what he actually
obtained. In resolving the case we ruled that the correction of the manifest
mistake in mathematical addition calls for a mere clerical task of the board of
canvassers. The remedy invoked was purely administrative. In Feliciano v.
Lugay13 we categorized the issue concerning registration of voters which
Canicosa cited as aground in his petition for declaration of failure of election,
as an administrative question. Likewise, questions as to whether elections
have been held or whether certain returns were falsified or manufactured
and therefore should be excluded from the canvass do not involve the right
to vote. Such questions are properly within the administrative jurisdiction of
COMELEC, 14 hence, may be acted upon directly by the COMELEC en banc
without having to pass through any of its divisions.
WHEREFORE, finding no grave abuse of discretion committed by public
respondent Commission on Elections, the petition is DISMISSED and its
Resolution en banc of 23 May 1995 dismissing the petition before it on the
ground that the allegations therein did not justify a declaration of failure of
election is AFFIRMED.
SO ORDERED.