In this petition for certiorari petitioners seek to annul and set aside the Resolution dated June 4, 1998 of the Commission on Elections (COMELEC) First Division directing the proclamation of private respondent as Mayor of the City of Manila for having been issued with grave abuse of discretion amounting to lack, or excess, of jurisdiction.

The backdrop of the instant case reveals the following antecedent facts:

Petitioners Amado S. Bagatsing, Ernesto M. Maceda and Jaime Lopez and herein private respondent Jose L. Atienza were candidates for the position of Mayor of Manila in the May 11, 1998 elections. Scä

On May 18, 1998, seven (7) days after the elections, petitioners filed with the COMELEC a complaint for disqualification against private respondent, docketed as SPA No. 98-319, on the ground that the latter allegedly caused the disbursement of public funds in the amount of Three Million Three Hundred Seventy-Five Thousand (P3,375,000.00) Pesos, more or less, within the prohibited forty-five-day period before the elections in violation of Article 22, Section 261 (g) (2)^.1 [Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense:

"(2) Any government official who promotes or gives any increase of salary or remuneration or privilege to any government official or employees, including those in government-owned or controlled corporations."]
of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code of the Philippines. The alleged disbursement was intended to be distributed in the form of financial assistance to the public school teachers of the City of Manila who manned the precinct polls in that city during the elections.

On May 20, 1998, the COMELEC (First Division)^.* [Composed of Manolo B. Gorospe as Presiding Commissioner and Evalyn I. Fetalino and Teresita Dy-Liacco Flores as Commissioners with the latter dissenting.] issued an order suspending the proclamation of private respondent, the dispositive portion of which reads:

On May 21, 1998, private respondent filed a Motion for Reconsideration and sought to set aside the afore-quoted order directing the suspension of his proclamation as mayor.

On June 4, 1998, the COMELEC (First Division)^.* [Composed of then Chairman Bernardo P. Pardo, Presiding Commissioner Manolo B. Gorospe and Commissioner Teresita Dy-Liacco Flores.] handed down a resolution granting the motion for reconsideration, ratiocinating thusly:

The decretal portion of the resolution reads:

That same day at around eleven o’clock in the morning, petitioners filed a Motion to Suspend Immediate Intended Proclamation of Respondent. In the afternoon of the same day, petitioners likewise filed a Motion for Reconsideration and a Second Motion to Suspend Immediate Intended Proclamation of Respondent before COMELEC en banc.

Meanwhile, the City Board of Canvassers of Manila reconvened at three o’clock in the afternoon of the same day, June 4, 1998, and proclaimed private respondent as the duly elected Mayor of the City of Manila.^.5 [Id., at 35.]

On June 25, 1999, without waiting for the resolution of their motion for reconsideration pending before the COMELEC en banc, petitioners filed the instant petition to set aside the June 4, 1998 resolution of the COMELEC's First Division.

Records reveal, however, that said motion for reconsideration pending before the COMELEC en banc was denied in its Order of July 2, 1998 at the instance of herein petitioners themselves for the reason that they had already filed a petition before this Court docketed as G.R. No. 134047.^.6 [Id., at 87.]

The instant petition seeks to strike down as having been issued with grave abuse of discretion COMELEC First Division Resolution dated June 4, 1998 dismissing the petition for disqualification and referring the case to the COMELEC’s Law Department for preliminary investigation, based on COMELEC Resolution No. 2050. Petitioners contend that Resolution No. 2050 had already been nullified by the decision of this Court in Sunga vs. Comelec.^.7 [288 SCRA 76 (1998)] Such being the case, petitioners argue that the COMELEC should be compelled by mandamus to assume jurisdiction and continue to hear and decide the disqualification case.

COMELEC Resolution No. 2050, adopted on November 3, 1988, reads:

The above-quoted resolution covers two (2) different aspects:

First, as contemplated in paragraph 1, a complaint for disqualification filed before the election which must be inquired into by the COMELEC for the purpose of determining whether the acts complained of have in fact been committed. Where the inquiry results in a finding before the election, the COMELEC shall order the candidate's disqualification. In case the complaint was not resolved before the election, the COMELEC may motu propio or on motion of any of the parties, refer the said complaint to the Law Department of the COMELEC for preliminary investigation.

Second, as laid down in paragraph 2, a complaint for disqualification filed after the election against a candidate (a) who has not yet been proclaimed as winner, or (b) who has already been proclaimed as winner. In both cases, the complaint shall be dismissed as a disqualification case but shall be referred to the Law Department of the COMELEC for preliminary investigation. However, if before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said court may order the suspension of the proclamation if the evidence of guilt is strong.

Petitioners contend that Resolution No. 2050, upon which the COMELEC anchored its dismissal of the disqualification case, is no longer a good law since it has been nullified in toto by this Court in Sunga v. COMELEC.^.8 [288 SCRA 76 (1998)]

Contrary to petitioners' contention, nowhere did the Court strike down COMELEC Resolution No. 2050 in Sunga. There, we held that: Sppedâ

The ruling in Sunga is not applicable to the case at bar. There, the complaint for disqualification was filed prior to the May 8, 1995 elections. Under Section 6 of R.A. 6646, where the complaint was filed before the election but for any reason, a candidate is not declared by final judgment before the election to be disqualified and he is voted for and receives the winning number of votes in such election, the COMELEC shall continue with the trial and hearing of the case. Thus, the facts in Sunga fall under the contemplation of Section 6, namely: (1) the complaint for disqualification was filed before the election; (2) for any reason, the issue of disqualification was not finally resolved before the election; and (3) the candidate sought to be disqualified is voted for and received the winning number of votes. Consequently, the COMELEC should have continued with the hearing and decided the case on the merits. Instead, COMELEC erroneously dismissed the disqualification case and referred the matter to the Law Department for preliminary investigation of the criminal aspect of the case. The deleterious effect of the premature and precipitate dismissal was pointed out by this Court, thus:

In sharp contrast, the complaint for disqualification against private respondent in the case at bar was lodged on May 18, 1998 or seven (7) days after the 1998 elections. Pursuant to paragraph 2 of Resolution No. 2050, the complaint shall be dismissed as a disqualification case and shall be referred for preliminary investigation to the Law Department of the COMELEC. Under this scenario, the complaint for disqualification is filed after the election which may be either before or after the proclamation of the respondent candidate. Sppedä jo

The COMELEC in Sunga obviously misapplied Resolution No. 2050 in dismissing the disqualification case therein simply because it remained unresolved before the election and, in lieu thereof, referring it to its Law Department for possible criminal prosecution of the respondent for violation of the election laws. Notably, there is nothing in paragraph 1 of Resolution No. 2050 which directs the dismissal of the disqualification case not resolved before the election. It says the COMELEC "may motu propio or on motion of any of the parties, refer the complaint to the Law Department of the Commission as an instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws." The referral to the Law Department is discretionary on the part of the COMELEC and in no way may it be interpreted that the COMELEC will dismiss the disqualification case or will no longer continue with the hearing of the same. The reason for this is that a disqualification case may have two (2) aspects, the administrative, which requires only a preponderance of evidence to prove disqualification, and the criminal, which necessitates proof beyond reasonable doubt to convict. Where in the opinion of the COMELEC, the acts which are grounds for disqualification also constitute a criminal offense or offenses, referral of the case to the Law Department is proper.

Petitioners argue that the COMELEC should have proceeded and continued with the trial of SPA No. 98-319 and rendered judgment as the law and evidence would warrant, invoking Section 6 of R.A. 6646.

We do not agree. Section 6 explicitly applies only to any candidate who has been declared by final judgment to be disqualified before an election. The section provides further that "if for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest xxx." There is no provision in R.A. 6646 that treats of a situation where the complaint for disqualification is filed after the election. If the intention of the law is for the COMELEC to hear and decide disqualification cases filed after the election, it would not have made a distinction between cases filed before and after the election. Section 6 would not have used the word "before" preceding "an election." Thus, the need for implementing rules as embodied in Comelec Resolution No. 2050 which provide that any complaint for disqualification based on Section 6 of R.A. 6646 is filed after the election against a candidate who has already been proclaimed as winner shall be dismissed as a disqualification case, but the complaint shall be referred for preliminary investigation to the Law Department of COMELEC.

The applicability of Resolution No. 2050 on disqualification cases was in fact upheld by this Court in Lozano vs. Yorac,^.11 [203 SCRA 256 (1991)] the Court said: Miso

xxx

xxx^.12 [Id., at 265-267.]

It bears stressing that the Court in Sunga recognized the difference between a disqualification case filed before and after an election when, as earlier mentioned, it stated that the referral of the complaint for disqualification where the case is filed before election "is totally different from the other two situations contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case."

Why there is a difference between a petition for disqualification filed before and after the election proceeds from the fact that before the election, the question of disqualification is raised as an issue before the electorate and those who vote for the candidate assume the risk that should said candidate be disqualified after the election, their votes would be declared stray or invalid votes. Such would not be true in the case of one filed after the electorate has already voted.^.13 [Comments on the Omnibus Election Code, Ruben E. Agpalo, 1998 Revised Edition, p. 126.]

Petitioners further postulate that the proclamation of private respondent on June 4, 1998 is void because it was made "without awaiting for the lapse of the five-day period for the finality of decisions rendered by a division in special actions," citing Sec. 13 (c) Rule 18 of the COMELEC Rules of procedure providing that "unless a motion for reconsideration 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. xxx"

We find this contention without merit. Nexâ old

The mere filing of a petition for disqualification is not a ground to suspend the proclamation of the winning candidate. In the absence of an order suspending proclamation, the winning candidate who is sought to be disqualified is entitled to be proclaimed as a matter of law. This is clear from Section 6 of R.A. 6646 providing that the proclamation of the candidate sought to be disqualified is suspended only if there is an order of the COMELEC suspending proclamation. Here, there was no order suspending private respondent’s proclamation. Consequently, private respondent was legally proclaimed on June 4, 1998.

Neither did the COMELEC err in not ordering the suspension of private respondent's proclamation. The second paragraph of paragraph 2 of Resolution No. 2050 provides that where a complaint is filed after the elections but before proclamation, as in this case, the complaint must be dismissed as a disqualification case but shall be referred to the Law Department for preliminary investigation. If before the proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of respondent with the court before which the criminal case is pending and that court may order the suspension of the proclamation if the evidence of guilt is strong.^.14 [See p. 8.] It appearing that none of the foregoing circumstances obtain herein as there is no prima facie finding of guilt yet, a suspension of private respondent's proclamation is not warranted. The mere pendency of a disqualification case against a candidate, and a winning candidate at that, does not justify the suspension of his proclamation after winning in the election. To hold otherwise would unduly encourage the filing of baseless and malicious petitions for disqualification if only to effect the suspension of the proclamation of the winning candidate, not only to his damage and prejudice but also to the defeat of the sovereign will of the electorate, and for the undue benefit of undeserving third parties.^.15 [Singco v. COMELEC, 101 SCRA 420, 429 (1980)]

Before we end, we take note that when petitioners filed the instant petition on June 25, 1999, they had before the COMELEC en banc a pending motion for reconsideration of the June 4, 1998 resolution of the First Division. The Court does not look with favor the practice of seeking remedy from this Court without waiting for the resolution of the pending action before the tribunal below, absent extraordinary circumstances warranting appropriate action by this Court. This makes a short shrift of established rules of procedure intended for orderly administration of justice. Maniâ kx

The COMELEC (First Division) in its June 4, 1998 resolution correctly referred petitioners’ complaint for disqualification to its Law Division for appropriate action. There being no temporary restraining order from this Court, that body as an instrument of the COMELEC should have continued with its task of determining whether or not there exists probable cause to warrant the criminal prosecution of those who may be liable for the alleged election offenses.

WHEREFORE, the instant petition is hereby DISMISSED. The respondent Commission on Elections is hereby directed to RESOLVE with great dispatch the pending incident relative to the preliminary investigation being conducted by its Law Department.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Pardo, J., no part.