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[G.R. No. 148179.June 26, 2001]

EDDIE C. GIL et al. vs. CHAIRMAN BENIPAYO et al.

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 26 2001.

G.R. No. 148179 (Senatorial Candidate Eddie C. Gil, as Chairman of Isang Bansa Isang Diwa party and Vice-Chairman Elezabeth Samson of the same Partido vs. Chairman Alfredo Benipayo of COMELEC Head Office and NCR-Regional Directors Headed by NCR Atty. Ferdinand T. Rafanan and the National Canvassing Board Headed by Chairman Alfredo Benipayo (COMELEC).)

This is a petition for prohibition with a prayer for the issuance of a preliminary injunction to annul the proclamation of the 13 senators elected during the May 14, 2001 elections, prevent the aforesaid senators from assuming office, and declare a failure of elections for the election of senators.

Petitioner Eddie C. Gil was the lone candidate for senator of Isang Bansa Isang Diwa in the May 14, 2001 elections.The COMELEC initially disqualified Gil but it subsequently reconsidered its ruling and approved Gil's certificate of candidacy on April 16, 2001.By that time, however, the COMELEC had already printed the forms to be used in the elections.In view of its approval of Gil's certificate of candidacy, the COMELEC, in its resolution of April 16, 2001, directed its field officers to add Gil's name in the list of senatorial candidates in the pertinent election forms and to tabulate the votes cast in favor of Gil.

On June 5, 2001, the COMELEC proclaimed the 13 elected senators.On June 6, 2001, petitioners Gil and Elezabeth Samson, chairman and vice chairman, respectively, of Isang Bansa Isang Diwa, filed this petition.Petitioners contend that respondents maliciously refused to implement the resolution of April 16, 2001 with the result that Gil's name was not added in the list of candidates for senators in the COMELEC forms and the votes cast in his favor were not tabulated.Petitioners also claim that respondent engaged in massive election fraud by crediting the votes cast for Gil in favor of "other candidates" (whom petitioners did not identify) and by misleading voters that Gil was a nuisance candidate who should not be voted.It is also contended that respondent Benipayo and the other members of the National Board of Canvassers committed grave abuse of discretion when they proceeded with the proclamation of the 13 elected senators notwithstanding the many petitions to hold the proclamation in abeyance.

The petition has no merit.

First. The function of the writ of prohibition is to compel a tribunal, corporation, board, or person exercising judicial or ministerial functions to desist from further proceeding in an action or matter when the proceedings in such tribunal, corporation, board, or person are without or in excess of jurisdiction or with grave abuse of discretion (Rule 65, �2).On the other hand, the jurisdiction of the COMELEC over the election for senators ends upon the proclamation of the winners, subject to the completion of the canvassing of votes.After that, any action concerning the election, returns, or qualification of senators should be filed with the Senate Electoral Tribunal which has original and exclusive jurisdiction over such (Const., Art. VII, �17; Perez v. Commission on Elections, 317 SCRA 641 (1997)).Considering that the COMELEC has already proclaimed the senators elected in the May 14, 2001 elections, there is nothing more for the COMELEC to do which this Court may compel them to desist from doing.Indeed, even if the Court treats this petition as a petition for certiorari, the writ will not issue because pre-proclamation controversies are not allowed in the election for senators (R.A. No. 7166, �15), thus the cases alleged by petitioners to be pending in the COMELEC (which are not claimed to involve the correction of manifest errors in the certificate of canvas or election returns) would have no bearing on the proclamation of the elected senators.

Second. Petitioners allege that respondent engaged in massive fraud.In support of their claim, petitioners submitted affidavits executed by congressional and local government candidates of Isang Bansa Isang Diwa in Camarines Sur to the effect that petitioner Gil's name was not included in the tally board sheet and in the reading and/or counting of votes for senators in all the precincts of that province.These hardly qualify as sufficient proof of the claimed massive cheating as the affiants even fail to mention the names of COMELEC officials involved.At any rate, petitioners' remedy is not to file this petition but to seek the imposition of the appropriate administrative and/or criminal penalties against the erring COMELEC officials (See Chavez v. Commission on elections, 211 SCRA 315 (1992)).

Third. Petitioners also pray that the Court declare a failure of elections for the election of senators.Under �6 of the Omnibus Election code, such declaration shall be made where, 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 has 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.Not one of these grounds is present in this case.

For the foregoing reasons, the Court RESOLVED to dismiss the petition for lack of merit.Santiago, J., is abroad on official time.

Very truly yours,

LUZVIMINDA D. PUNO
Clerk of Court

(Sgd.) MA. LUISA D. VILLARAMA

Asst. Clerk of Court

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