An election must be held at the place, date and time prescribed by law. Likewise, its suspension or postponement must comply with legal requirements. Otherwise, it is irregular and void. Â h Y

Petitioner1 [Petitioner describes the present recourse as a "Petition for Review on Certiorari." The Court, however, resolved to consider it as a Petition for Certiorari under Rule 65 of the Rules of Court because it is grounded on grave abuse of discretion on the part of the Comelec.] assails before us the June 8, 1999 Resolution of the Commission on Elections (Comelec)2 [The Resolution was signed by Comelec Chairman Harriet O. Demetriou, Commissioners Manolo B. Gorospe, Julio F. Desamito, Teresita Dy-Liacco Flores, Japal M. Guiani, Luzviminda G. Tancangco and Abdul Gani Marohombsar Al Hadj.] in SPA Case No. 97-276 which dismissed a Petition to Declare a Failure of Election and to Call Special Election in Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Sur. The assailed Resolution disposed as follows: Jksm

Petitioner Hadji Rasul Batador Basher and Private Respondent Abulkair Ampatua were both candidates for the position of Punong Barangay in Barangay Maidan, Tugaya, Lanao del Sur during the May 12, 1997 barangay election. The election was declared a failure and a special one was set for June 12, 1997. Again, the election failed and was reset to August 30, 1997. Chief

According to the Comelec, the voting started only around 9:00 p.m. on August 30, 1997 because of the prevailing tension in the said locality. Election Officer Diana Datu–Imam reported that she was allegedly advised by some religious leaders not to proceed with the election because "it might trigger bloodshed." She also claimed that the town mayor, "being too hysterical, yelled and threatened me to declare [a] failure of election in Maidan." Subsequently, the armed followers of the mayor pointed their guns at her and her military escorts, who responded in like manner towards the former. The parties were then pacified at the PNP headquarters. With the arrival of additional troops, the election officer proceeded to Maidan to conduct the election starting at 9:00 p.m. until the early morning of the following day. The holding of the election at that particular time was allegedly announced "over the mosque."4 [Narrative Report of Election Officer Diana T. Datu-Imam, cited in the assailed Resolution, pp. 4-5; rollo, pp. 16-17.]

The tally sheet for the said "election" showed the following results: private respondent – 250 votes; petitioner – 15 votes; and Baulo Abdul Razul, a third candidate – 10 votes.5 [Annex "K," Petition; rollo, p. 38.] Private respondent was proclaimed winner.

Petitioner then filed a Petition before the Comelec praying that the election be declared a failure. Alleging that no election was conducted in the place and at the time prescribed by law, petitioner narrated that there was a dispute that day (August 30, 1997) among the candidates regarding the venue of the election in the lone voting precinct of the barangay. In order to avoid bloodshed, they ultimately agreed that no election would be conducted. Accordingly, the election officer turned over for safekeeping the ballot box containing election paraphernalia to the acting station commander (OIC) of the Philippine National Police (PNP). The following day, petitioner and the third candidate were surprised to learn that the election officer had directed the Board of Election Tellers to conduct the election and to fill up the election returns and certificates of canvass on the night of August 30, 1997 at the residence of the former mayor. Petitioner also stated that no announcement to hold the election at the former mayor’s house that night was ever made.6 [Petition to Declare a Failure of Election, pp. 2-3; rollo, pp. 23-24.]

As earlier stated, the Comelec dismissed the Petition. Hence, this recourse to this Court.7 [The Court deemed the case submitted for decision upon the filing of Respondent Comelec’s Comment on October 29, 1999. Private respondent’s Comment was received on July 23, 1999. This case, however, was assigned to the undersigned ponente for the writing of the Court’s Decision during the deliberations of the Court on April 11, 2000 when his erstwhile Dissent was voted as the majority opinion.]

The Comelec ruled against a failure of election because the two conditions laid down in Mitmug v. Comelec8 [230 SCRA 54, February 10, 1994.] were not established. It held that the "election was conducted on the scheduled date. The precinct functioned. Actual voting took place, and it resulted not in a failure to elect."9 [Assailed Resolution, p. 8; rollo, p. 20.]

In justifying the balloting at the dead of night, the poll body cited Section 22, Article IV of Comelec Resolution 2971, which provided in part that "[i]f at three o’clock, there are still voters within thirty meters in front of the polling place who have not cast their votes, the voting shall continue to allow said voters to cast their votes without interruption. x x x" The Comelec then went on to state that "experience had shown that even when there is a long delay in the commencement of the voting, voters continue to stay within the area of the polling place."10 [Ibid., p. 6; rollo, p. 18.]

Petitioner submits the following questions for the consideration of the Court:

In the main, the crucial question that needs to be addressed is whether the "election" held on the date, at the time and in the place other than those officially designated by the law and by the Comelec was valid. Esm

The Petition is meritorious.

Citing Mitmug v. Comelec,12 [230 SCRA 54, February 10, 1994. See also §6, Omnibus Election Code.] the Comelec points out that a failure of election requires the concurrence of two conditions, namely (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the election. It ruled that these requirements were not met. Esmsc

We do not agree. The peculiar set of facts in the present case show not merely a failure of election but the absence of a valid electoral exercise. Otherwise stated, the disputed "election" was illegal, irregular and void. Esmmis

First, the place where the voting was conducted was illegal. Section 42 of the Omnibus Election Code provides that "[t]he chairman of the board of election tellers shall designate the public school or any other public building within the barangay to be used as polling place in case the barangay has one election precinct x x x." Petitioner, citing an Affidavit13 [Rollo, p. 34.] supposedly executed by the members of the Board of Election Tellers (BET) for Barangay Maidan, alleges that the election of officials for said barangay was held at the residence of former Mayor Alang Sagusara Pukunun, which is located at Barangay Pandarianao, instead of the officially designated polling precinct at Cagayan Elementary School. If this allegation were true, such "election" cannot be valid, as it was not held within the barangay of the officials who were being elected. On the other hand, it is admitted that there was a public school or building in Barangay Maidan -- the Cagayan Elementary School, which was the earlier validly designated voting center.

While the BET members later repudiated their Affidavit, they could only claim that the election was held "in Barangay Maidan."14 [See Assailed Comelec Resolution, p. 4.] They, however, failed to specify the exact venue. In fact, to this date, even the respondents have failed to disclose where exactly the voting was conducted. This glaring omission definitely raises serious questions on whether the election was indeed held in a place allowed by law. Esmso

Second, as to the time for voting, the law provides that "[t]he casting of votes shall start at seven o'clock in the morning and shall end at three o'clock in the afternoon, except when there are voters present within thirty meters in front of the polling place who have not yet cast their votes, in which case the voting shall continue but only to allow said voters to cast their votes without interruption."15 [§190, OEC, as amended.] Section 22, Article IV of Comelec Resolution No. 2971 also specifies that the voting hours shall start promptly at 7:00 a.m. and end at 3:00 p.m. of the same day. Msesm

However, the "election" for Barangay Maidan officials was supposed to have been held after 9:00 p.m. of August 30, 1997 until the wee hours of the following day. Certainly, such schedule was not in accordance with law or the Comelec Rules. The Comelec erred in relying on the second sentence of Section 22, Article IV of Comelec Resolution 2971, which states that "[i]f at three o'clock [in the afternoon], there are still voters within thirty meters in front of the polling place who have not cast their votes, the voting shall continue to allow said voters to cast their votes without interruption." This sentence presupposes that the election commenced during the official time and is simply continued beyond 3:00 p.m. in order to accommodate voters who are within thirty meters of the polling place, already waiting for their turn to cast their votes. This is clearly the meaning and intent of the word continue -- "to go on in a specified course of action or condition."16 [Webster's New World Dictionary, 2nd College ed. (1974). (Emphasis supplied.)] The action or condition already subsists and is allowed to go on. Otherwise, the law should have stated instead that "the voting may also start even beyond 3:00 p.m. if there are voters within thirty meters in front of the polling place." Exsm

The strained interpretation espoused by the Comelec encourages the conduct of clandestine "elections," for it virtually authorizes the holding of elections beyond normal hours, even at midnight when circumstances could be more threatening and conducive to unlawful activities. On a doctrinal basis, such nocturnal electoral practice discourages the people's exercise of their fundamental right of suffrage, by exposing them to the dangers concomitant to the dead of night, especially in far-flung barangays constantly threatened with rebel and military gunfires. Kyle

Third, the Comelec scheduled the special election on August 30, 1997. Any suspension or postponement of an election is governed by Section 2 of RA 6679,17 [Otherwise known as the Barangay Election Law, which amended parts of the OEC.] which states that "[w]hen for any serious cause such as rebellion, insurrection, violence, terrorism, loss or destruction of election paraphernalia, and any analogous causes of such nature that the holding of a free, orderly and honest election should become impossible in any barangay, the Commission on Election motu proprio or upon sworn petition of ten (10) registered voters of a barangay, after summary proceedings of the existence of such grounds, shall suspend or postpone the election therein to a date reasonably close to the date of the election that is not held or is suspended or postponed, or which resulted in a failure to elect, but not later than thirty (30) days after the cessation of the cause for such suspension or postponement of the election or failure to elect, and in all cases not later than ninety (90) days from the date of the original election." Kycalr

Election Officer Diana Datu-Imam of Tugaya, Lanao del Sur practically postponed the election in Barangay Maidan from the official original schedule of 7:00 a.m. to 3:00 p.m. of August 30, 1997 to 10:00 p.m. of August 30, 1997 until the early morning of August 31, 1997. She attempted to justify her postponement of the election by citing threats of violence and bloodshed in the said barangay. Allegedly because of the tension created by armed escorts of the municipal mayor and the military, Datu-Imam declared a failure of election in order "to ease their aggression." However, as election officer, she has no authority to declare a failure of election. Indeed, only the Comelec itself has legal authority to exercise such awesome power. An election officer alone, or even with the agreement of the candidates, cannot validly postpone or suspend the elections. Calrky

Fourth, Datu-Imam did not follow the procedure laid down by law for election postponement or suspension or the declaration of a failure of election. She narrated the circumstances surrounding her declaration as follows:18 [Narrative Report dated August 31, 1997 of Election Officer Diana T. Datu-Imam, p. 2; rollo, pp. 57-58.]

It clearly appears from the very report of Datu-Imam to the Comelec that she did not conduct any proceeding, summary or otherwise, to find out whether any of the legal grounds for the suspension or postponement or the declaration of failure of the election actually existed in the barangay concerned. Mesm

Finally and very significantly, the electorate was not given ample notice of the exact schedule and venue of the election. The election officer herself relates:19 [Narrative Report, supra.]

As can be gleaned easily from the above report, the electorate of Barangay Maidan was not given due notice that the election would push through after 9:00 p.m. that same day. Apparently, the election officer's decision to hold the election on the night of August 30, 1997 was precipitate. Only after additional military troops had arrived at their site in a nearby barangay about 8:30 p.m. did the election officers proceed to Barangay Maidan. Arriving at Maidan, they allegedly proceeded to conduct the election "after announcing it over the mosque."

Such abbreviated announcement "over the mosque" at such late hour did NOT constitute sufficient notice to the electorate. Consequently, not the entire electorate or even a respectable number could have known of the activity and actually participated therein or voluntarily and discerningly chosen not to have done so. Slx

Indeed, the Court in Hassan v. Comelec20 [264 SCRA 125, November 13, 1996, per Kapunan, J.] held that the notice given on the afternoon of the election day resetting the election to the following day and transferring its venue was "too short." We said that "[t]o require the voters to come to the polls on such short notice was highly impracticable. x x x It is essential to the validity of the election that the voters have notice in some form, either actual or constructive, of the time, place and purpose thereof.21 [Citing Furste v. Gray, 240 Ky 604, 42 SW 2d 889; and State ex rel Stipp v. Colliver, (MO) 243 SW 2d 344.] The time for holding it must be authoritatively designated in advance."22 [Hassan, supra, p. 134.]

In the case at bar, the announcement was made only minutes before the supposed voting. If one-day notice was held to be insufficient in Hassan, the much shorter notice in the present case should all the more be declared wanting. It should in fact be equated with "no notice." Scslx

In sum, the "election" supposedly held for officials of Barangay Maidan cannot be clothed with any form of validity. It was clearly unauthorized and invalid. It had no legal leg to stand on. Not only did the suspension/postponement not comply with the procedure laid down by law and the Comelec Rules, neither was there sufficient notice of the time and date when and the place where it would actually be conducted. It was thus as if no election was held at all. Hence, its results could not determine the winning punong barangay. Slxsc

WHEREFORE, the Petition is hereby GRANTED and the assailed Resolution SET ASIDE. The proclamation of private respondent as punong barangay is hereby declared VOID. Respondent Comelec is ORDERED to conduct a special election for punong barangay of Maidan, Tugaya, Lanao del Sur as soon as possible. No pronouncement as to costs. Slxmis

Davide, Jr., C.J., Melo, Puno, Kapunan, Mendoza, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur. Missdaa

Bellosillo, J., no part, did not take part in deliberation.

Vitug, J., on official business abroad.

Purisima, J., joins the dissent of J. De Leon, Jr.

De Leon, Jr., JJ., see dissent.

With due respect, I dissent from the majority decision or ponencia of Mr. Justice Artemio V. Panganiban which grants the petition in the case at bench.

Before us is a special civil action for certiorari under Rule 65 which seeks to set aside the Resolution1 [Annex "A" of the Petition, Rollo, pp. 13-21; Concurred in by Chairman Harriet O. Demetriou and Commissioners Manolo B. Gorospe, Julio F. Desamito, Teresita Dy-Liacco Flores, Japal M. Guiani, Luzviminda G. Tancangco and Abdul Gani Marohombsar Al Hadj.] dated June 8, 1999 of the Commission on Elections (COMELEC) en banc in SPA Case No. 97-276, denying petitioner’s petition to declare a failure of election in Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Sur and to annul the proclamation of private respondent and seven (7) others as winners of the August 30, 1997 barangay special election. Sdaadsc

The petitioner captioned and erroneously stated that the nature of this petition is a "petition for review on certiorari." However, in this verified petition, the petitioner alleges that respondent COMELEC "acted without or in excess of jurisdiction and/or grave abuse of discretion:" (a) in dismissing the petition in SPA No. 97-276 for alleged lack of merit; (b) in not declaring a failure of election on August 30, 1997 and not calling for a special election in Precint No. 12, Barangay Maidan, tugaya, Lanao Del Sur; and (c) in not declaring as illegal, null and void ab initio the proclamation on August 30, 1997 of private respondent as the duly elected Punong Barangay of Barangay Maidan. Petitioner then prays that COMELEC’s assailed Resolution be reversed, the proclamation of private respondent as Punong Barangay be annulled and that COMELEC be ordered to set a special election in the same precint or barangay. Considering the well-settled rule that what determines the nature of action are the allegations of the complaint or petition, and the character of the relief sought,2 [Union Bank of the Philippines v. Court of Appeals, 290 SCRA 198 (1998).] and considering the interest of justice, we accordingly treat this petition as a special civil action for certiorari under Rule 65. Rtcspped

During the May 12, 1997 barangay election, petitioner Hadji Rasul Batabor Basher, the incumbent punong barangay, and private respondent Abulkair Ampatua were candidates for the position of punong barangay. However, there was a failure of election in Precint No. 12, the lone precint of Barangay Maidan, prompting the COMELEC to reset the election to June 11, 1997. Unfortunately, there was again a failure of election. Election was reset to August 30, 1997.

Reports submitted to the COMELEC indicated that election was held as re-scheduled, and that private respondent along with Monatao Ebrahem, Lontowa Pokaan, Baser Abdala, Saadia Gonteng, Kodos Mangebarat, Bonsa Mabatao and Kamilo Hadji Rasul were proclaimed as duly elected punong barangay and barangay kagawads, respectively, of Barangay Maidan, Tugaya, Lanao del Sur. Korte

In his letters dated September 2, 19973 [Addressed to Commissioner Manolo B. Gorospe as Commissioner-in-Charge of Region IX, XII and the ARMM; Records, p. 6.] and September 5, 19974 [Addressed to Atty. Muslemen P. Tahir, Provincial Election Supervisor of Lanao del Sur; Records, p. 7.] to the COMELEC, petitioner requested that a failure of election be declared in Precinct No. 12. Petitioner claimed:

In her unrebutted report to COMELEC Commissioner Manolo B. Gorospe, Election, Officer Mrs. Diana T. Datu Imam recounted the events that took place on August 30, 1997 as follows: Sclaw

Petitioner then filed a petition with the COMELEC, docketed as SPA Case No. 97-276, praying that the barangay special election in Precinct No. 12 be declared a failure and that the proclamation of private respondent and the other kagawads be declared null and void. The COMELEC dismissed the petition and found that the barangay special election was held in fact in Barangay Maidan and that it started only at 9:00 o'clock p.m. due to the presence of the Mayor's armed followers who earlier in the day confiscated the original ballot box and pointed their guns at Election Officer Datu Imam and her military escorts. Hence, COMELEC held that the said election is valid inasmuch as Section 22, Article IV of COMELEC Resolution No. 2971 permits the casting of ballots even after 3:00 o'clock p.m. if there are voters within thirty (30) meters from the polling place who have not cast their votes. The COMELEC also considered the importance attached to barangay elections by the barangay electorate as evidenced by the fact that voters of the said Precinct No. 12, which significantly is the lone precinct in Barangay Maidan, continued to stay within the vicinity of the polling place obviously to be able to vote even when the commencement of voting has long been delayed. The COMELEC stressed that this was precisely the case in Barangay Maidan, considering that the barangay election therein has already been postponed twice. The COMELEC pointed out that the two (2) conditions for declaring a failure of election cited in Mitmug v. COMELEC,7 [230 SCRA 54 (1994).] namely (1) no voting has taken place in the precinct or precincts on the date fixed bylaw or, even if there was voting, the election nevertheless results in failure to elect, and (2) the votes not cast would affect the result of the election, are not present in this case.

Dissatisfied, petitioner filed the instant petition. Sclex

The petition is not meritorious.

Petitioner assails the validity of the August 30, 1997 barangay special election on two (2) grounds: first, as to the time when it was conducted, and second, as to the place where it was held. It is not disputed that the said barangay special election in Barangay Maidan was finally conducted from 9:00 o'clock p.m. on August 30, 1997 until 3:00 o'clock a.m. of the following day in view of the presence of the Mayor's armed followers who earlier in the day pointed their guns at Election Officer Datu Imam and her military escorts. It cannot be denied that the COMELEC has the power to declare a failure of election.8 [Republic Act No. 7166, Section 4.]

Petitioner, alleges that candidates and voters were not given prior notice that the said barangay special election would take place in the evening of August 30, 1997; that the designated time for the special election was contrary to Section 22, Article IV of COMELEC Resolution No. 2971, which specifies that voting hours shall promptly start at 7:00 o'clock a.m. and shall end at 3:00 o'clock p.m.; and that the barangay election was held at the residence of a former mayor, allegedly in an area far from the designated polling place, and that only one or a few individuals allegedly accomplished the ballots. As a consequence thereof, petitioner, his running mates for barangay kagawad and their respective supporters were allegedly unable to cast their votes thereby warranting a declaration by the COMELEC that there was a failure of election.

The time during which the election in Barangay Maidan was conducted on August 30, 1997 was somewhat unusual due to the extraordinary circumstances. However, that it was allegedly contrary to COMELEC Resolution No. 2971 and Section 190 of the Omnibus Election Code was not actually so. We bear in mind our disquisition in Hassan v. COMELEC9 [264 SCRA 125 (1996).] that: Xlaw

In Hassan which involves a municipal election, we held that notice given in the afternoon of May 28, 1995, resetting the special election to May 29, was insufficient. However, in the case at bench which involves a barangay special election in Precinct No. 12 which is the sole precinct in Barangay Maidan, the announcement was made in the mosque a few hours before voting actually commenced. Unlike Hassan, the circumstances of the case at bench, impel us to arrive at a different conclusion. In Hassan, we found that only 328 out of the 1,546 registered voters in five (5) precincts of Madalum, Lanao del Sur were able to cast their votes. In the case at bench, the records are bereft of any evidence that the said announcement or notice made in the mosque of Barangay Maidan whose populace is predominantly Muslim living in the small territorial jurisdiction of said barangay, resulted in the disenfranchisement of a substantial number of voters and that the votes not cast would materially affect the results of the election. Petitioner merely alleges that private respondent, who is one of his opponents for the position of punong barangay, garnered 250 votes whereas he (petitioner) was credited with only 15 votes. Petitioner disputes the probability of these results in view of the fact that he was the incumbent punong barangay with several relatives, friends and supporters in Barangay Maidan. Apart from his bare assertions, there was no indication in the subject petition, much less evidence, as to the total number of registered voters in Barangay Maidan and the number of voters who were allegedly unable to exercise their right of suffrage in the said barangay special election. Xsc

With respect to petitioner's allegation that the barangay election in Barangay Maidan was held at the house of former Mayor Alang S. Fukunum in Pandiaranao, Tugaya, Lanao del Sur, we find the same unworthy of credence. In support of his allegation, petitioner presented the affidavits of Cpl. Conrado Doroy, Cpl. Ale Garcia and Pfc. Ferdinand Bangayan. However, as found by the COMELEC, the said affiants testified before the Provincial Election Supervisor of Lanao del Sur that voting was actually held in Barangay Maidan. More importantly, the said affiants executed another affidavit11 [Records, p. 110.] disclaiming the contents of their first affidavit on the ground that they were "ready made" and that they had no knowledge of its contents as their first affidavit was not translated to them in the vernacular. In his petition before this Court, petitioner alleges that the barangay election was held at the house of the former mayor while in his affidavit,12 [Supra, note 4.] which was executed three (3) days after the barangay special election, he states that the election was allegedly held at an unknown place. Those conflicting allegations cast doubt on the petitioner's credibility. On the other hand, this Court, not being a trier of facts, has to give due weight and credence to the findings of facts of COMELEC, and more particularly to the unrebutted Report13 [Records, pp. 89-90.] of Election Officer Datu Imam that the subject barangay special election, was in fact held in Barangay Maidan, Tugaya, Lanao del Sur, and that the registered voters of said barangay were sufficiently notified as to the place and time of said barangay special election which was in fact a neighborhood election. The notification or announcement was made in the mosque in that barangay because the voters of Barangay Maidan are predominantly Muslim. Sc

The power to declare a failure of election and to set aside the results thereof is an extraordinary remedy. As early as Mandac v. Samonte,14 [49 Phil. 284 (1926).] we held that courts should be slow in nullifying elections, exercising the power only when it is shown that the irregularities and frauds are so numerous as to show an unmistakable intention or design to defraud, and which in fact defeat the true expression of the will of the electorate.15 [Id., p. 299.] As a rule, therefore, the following conditions must be satisfied before the COMELEC can favorably act upon a petition to declare a failure of election: (1) that no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the elections nevertheless result in a failure to elect; and (2) the votes not cast would affect the result of the election.16 [Supra note 6; Sardea v. COMELEC, 225 SCRA 275 (1993); Usman v. COMELEC, 42 SCRA 667 (1971).] In the light of the facts as borne in the records, these two conditions do not obtain in the case at bench. Consequently, in Balindong v. COMELEC17 [260 SCRA 494 (1996).] and Co v. COMELEC,18 [Unsigned Resolution, G.R. No. 78820, May 17, 1988.] we refused to declare a failure of election despite alleged irregularities in the conduct of elections in the absence of evidence that the right of suffrage of a substantial portion of the electorate was prejudiced thereby. We find no compelling reason to deviate from these jurisprudential rulings of this Court. In the case at bar, there is certainly absence of evidence that the right of suffrage of a substantial portion of the electorate of Barangay Maidan was allegedly prejudiced in the said barangay special election in Precint No. 12 which is the only precinct of the said barangay. On the other hand, to grant the Petition, in the light of the unique circumstances in this case, means to declare a failure of the barangay special election for the third time, and thereby unwittingly frustrate the will of the majority of the barangay electorate to elect the private respondent as Punong Barangay and to reject the petitioner who resorted to legal technicalities and relied on the presence of the threatening armed followers of the Mayor who is obviously sympathetic to the petitioner. Is that just and equitable?

IN VIEW OF ALL THE FOREGOING, I vote to deny the Petition. It is my considered opinion that respondent COMELEC, in rendering its subject Resolution dated June 8, 1999 in SP Case No. 97-276, did not act with grave abuse of discretion. The Petition in the case at bench should be as it is hereby DISMISSED. Scmis