CD - 6. Zarate v. Comelec

ZARATE v.
COMELEC
November 19, 1999| Purisima, J|SK
Digester: Alexis Bea
SUMMARY: Julian Lallave, Jr. won the 1996 SK Elections of Brgy Ican, Malasiqui, Pangasinan, garnering a total of 46
votes over Marivic Zarate who garnered 45 votes. Unsatisfied with the proclamation by the Barangay Board of
Canvassers, Zarate filed an election protest before the Municipal Trial Court stating that three or more votes that read
“JL” should not have been credited in favor of Lallave. Zarate further stated that the votes bearing “JL” were stray votes
and that there was no candidate with the name or nickname of “JL”. The Municipal Trial Court rendered it decision in
favor of petitioner Zarate, declaring 8 of the original 46 votes invalid. Lallave appealed to the Commission on Elections
theorizing that the votes reading “JL” should be credited in his favour considering that such initials sufficiently identify
him as the candidate and that the votes bearing “Julian, Jr de Real”, “Notno Lallave”, and “Nono de Real” should have
been credited as well being his nickname and middlename, respectively. The appeal by Lallave was not referred to a
division of the Commission but was, instead, submitted to the Commission en banc.The COMELEC en banc annulled
the decision of the Municipal Trial Court and declared Lallave as the elected SK chairman.
DOCTRINE: Election cases include pre-proclamation controversies, and all such cases must first be heard and decided
by a Division of the Commission. The Commission, sitting en banc, does not have the authority to hear and decide the
same at the first instance.
FACTS:
 During the 1996 Sangguniang Kabataan elections, respondent Julian Lallave, Jr. won over the petitioner, Marivic
Zarate, by a single vote. The former garnered a total of forty-six (46) votes as against the latters forty-five (45) votes.
Accordingly, the Barangay Board of Canvassers proclaimed respondent Lallave, Jr. the duly elected SK Chairman.
 Petitioner lodged his election protest before the Municipal Trial Court of Malasiqui, Pangasinan, docketed as SK
Election Protest No. 04; alleging that:
o During the counting, tallying and canvassing of votes for each of the candidates, respondent-members of
the Board of Election Tellers counted, credited and/or declared valid three (3) or more votes that read JL
in favor of respondent Julian Lallave, Jr., when they should have voided the same or excluded as valid
votes. Thus, the result of the counting is 46 for protestee and 45 for the protestant;
o The votes bearing JL are stray votes and are therefore null and void. They are marked ballots because the
votes (sic) can identify the vote as his. More importantly, there is no candidate with a name or nickname
JL. Law and jurisprudence declare such type of votes irregular, anomalous and void;
o That had the three (3) or more ballots/votes bearing JL been voided or excluded among the valid votes
cast, the votes should be: 45- for Marivic A. Zarate; 46- for Julian Lallave, Jr. (This is on the assumption
that there are only three (3) JL votes).
o Protestant should have been proclaimed as the SK Chairman of Brgy. Ican, Malasiqui, Pangasinan.
 MTC: Set aside the proclamation of the private respondent Julian Lallave, Jr.
o Eight of the original forty-six ballots of the latter were declared marked, thereby reducing his number of
votes to thirty-eight (38). On the other hand, of petitioners forty-five (45) votes, one was invalidated.
Petitioner Zarate was therefore, adjudged winner with forty-four (44) votes as against the thirty-eight (38)
of Lallave, Jr.
 Respondent: Appealed
o Five ballots in question (Exhibit A, B, C, D E), bearing the initials JL, should have been credited in his
favor considering that such initials sufficiently identify him as the candidate intended to be voted for as he
was the only one of the three candidates with the initials JL.
o He also contended that the ballots marked Exhibits F, G and H were not marked ballots as the names
written thereon, Julian, Jr. de Real, I Notno Lallave and Nono de Real, sufficiently identify him, the same
being his nickname and middle name, respectively, de Real being his middle name (his mothers surname)
and he is known in their locality as Nono.
 Petitioner: MTC was correct in invalidating the said ballots in question, pursuant to paragraph 14, Section 211 of
the Omnibus Election Code
 COMELEC: Set aside MTC decision and declared Llave as duly elected SK Chairman.
o Section 211, par. 14 of the Omnibus Election Code provides that 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 stray vote but shall not invalidate the whole ballot.
o As applied: While JL initials appeared in the aforesaid exhibits, it should be noted that petitioner Julian
Lallave, Jr., is the only candidate who possesses the JL initials and in our view, ballots containing such
initials SUFFICIENTLY IDENTIFY petitioner as the candidate intended to be voted for SK Chairman.
RULING: Petition granted.
[ISSUES RAISED BY PETITION]

Whether or not the ballots bearing the JL initials are marked ballots
Whether the COMELEC correctly ruled that the votes containing the initials “JL” for the position of SK
chairman should be counted in favor of private respondent
[ISSUE TACKLED BY THE COURT]

Whether or not COMELEC committed GADALEJ—YES
 Although not raised as an issue here, the Court can motu proprio consider and resolve the question of jurisdiction.
 The appeal interposed by the private respondent to the Commission on Elections from the decision of the Trial
Court of origin in subject election case, was not referred to a division of the Commission but was, instead,
submitted to the Commission En Banc, which decided against the petitioner in the Resolution of April 24, 1997.
 Such recourse by the private respondent transgressed Section 3, Subdivision C of Article IX of the Constitution
which expressly provides:
o Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All
such election cases shall be heard and decided in division, provided that motions for reconsideration of
decisions shall be decided by the Commission en banc.
 Sarmiento vs. COMELEC:
o It is clear from the abovequoted provision of the 1987 Constitution that election cases include pre-
proclamation controversies, and all such cases must first be heard and decided by a Division of the
Commission.
o The Commission, sitting en banc, does not have the authority to hear and decide the same at the first
instance. In the COMELEC RULES OF PROCEDURE, pre-proclamation cases are classified as Special
Cases and, in compliance with the above provision of the Constitution, the two (2) Divisions of the
Commission are vested with the authority to hear and decide these Special Cases.
 Rule 27 thereof governs Special Cases; specifically, Section 9 of the said Rule provides that appeals from rulings of
the Board of Canvassers are cognizable by any of the Divisions to which they are assigned and not by the
commission en banc. Said Section reads:
o SEC. 9. Appeals from rulings of Board of Canvassers. - (a) A party aggrieved by an oral ruling of the board
of canvassers who had stated orally his intent to appeal said ruling shall, within five days following receipt
of a copy of the written ruling of the board of canvassers, file with the Commission a verified appeal,
furnishing a copy thereof to the board of canvassers and the adverse party.
 (b) The appeal filed with the Commission shall be docketed by the Clerk of Court concerned.
 (c) The answer/opposition shall be verified.
 (d) The Division to which the case is assigned shall immediately set the case for hearing.
o A motion to reconsider the decision or resolution of the Division concerned may be filed within five (5)
days from its promulgation.
o The Clerk of Court of the Division shall, within twenty-four (24) hours from the filing thereof, notify the
Presiding Commissioner of such fact; in turn, the latter shall certify the case to the Commission en banc.
Thereafter, the Clerk of Court of the Commission shall calendar the motion for reconsideration for the
resolution of the Commission en banc within ten (10) days from the certification.
 Indisputably then, the COMELEC en banc acted without jurisdiction, or with grave abuse of discretion, when it
resolved the appeals of petitioners in the abovementioned Special Cases without first referring them to any of its
Divisions. Said resolutions are, therefore, null and void and must be set aside. Consequently, the appeals are deemed
pending before the Commission for proper referral to a Division.

CD - 6. Zarate v. Comelec

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ZARATE v.

RULING: Petition granted.

[ISSUES RAISED BY PETITION]

[ISSUE TACKLED BY THE COURT]

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