This petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure seeks to annul and set aside, for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction, the 17 May 1996 Resolution of the COMELEC 2nd Division in Sunga v. Trinidad, SPA No. 95-213,^[1] dismissing the petition for disqualification against private respondent Ferdinand B. Trinidad pursuant to COMELEC Resolution No. 2050 promulgated 3 November 1988, as amended by COMELEC Resolution No. 2050-A promulgated 8 August 1990, and 30 July 1996 Resolution of the COMELEC En Banc affirming the 17 May 1996 Resolution of the COMELEC 2nd Division.

Petitioner Manuel C. Sunga was one of the candidates for the position of Mayor in the Municipality of Iguig, Province of Cagayan, in the 8 May 1995 elections. Private respondent Ferdinand B. Trinidad, then incumbent mayor, was a candidate for re-election in the same municipality.

On 22 April 1995 Sunga filed with the COMELEC a letter-complaint^[2] for disqualification against Trinidad, accusing him of using three (3) local government vehicles in his campaign, in violation of Sec. 261, par. (o), Art. XXII, of BP Blg. 881 (Omnibus Election Code, as amended). On 7 May 1995, Sunga filed another letter-complaint^[3] with the COMELEC charging Trinidad this time with violation of Sec. 261, par. (e) (referring to threats, intimidation, terrorism or other forms of coercion) of the Omnibus Election Code, in addition to the earlier violation imputed to him in the first letter-complaint. This was followed by an Amended Petition^[4] for disqualification consolidating the charges in the two (2) letters-complaint, including vote buying, and providing more specific details of the violations committed by Trinidad. The case was docketed as SPA No. 95-213.

In a Minute Resolution dated 25 May 1995,^[5] the COMELEC 2nd Division referred the complaint to its Law Department for investigation. Hearings were held wherein Sunga adduced evidence to prove his accusations. Trinidad, on the other hand, opted not to submit any evidence at all.

Meanwhile, the election results showed that Trinidad garnered the highest number of votes, while Sunga trailed second.

On 10 May 1995 Sunga moved for the suspension of the proclamation of Trinidad. However, notwithstanding the motion, Trinidad was proclaimed the elected mayor, prompting Sunga to file another motion to suspend the effects of the proclamation. Both motions were not acted upon by the COMELEC 2nd Division.

On 28 June 1995 the COMELEC Law Department submitted its Report^[6] to the COMELEC En Banc recommending that Trinidad be charged in court for violation of the following penal provisions of the Omnibus Election Code: (a) Sec. 261, par. (a), on vote buying; (b) Sec. 261, par. (e), on threats, intimidation, terrorism or other forms of coercion; and, (c) Sec. 261, par. (o), on use of any equipment, vehicle owned by the government or any of its political subdivisions. The Law Department likewise recommended to recall and revoke the proclamation of Ferdinand B. Trinidad as the duly elected Mayor of Iguig, Cagayan; proclaim Manuel C. Sunga as the duly elected Mayor; and, direct Sunga to take his oath and assume the duties and functions of the office.

The COMELEC En Banc approved the findings of the Law Department and directed the filing of the corresponding informations in the Regional Trial Court against Trinidad. Accordingly, four (4) informations^[7] for various elections offenses were filed in the Regional Trial Court of Tuguegarao, Cagayan. The disqualification case, on the other hand, was referred to the COMELEC 2nd Division for hearing.

On 2 May 1996 Sunga filed a Second Urgent Motion to Suspend the Effects and Annul the Proclamation with Urgent Motion for Early Resolution of the Petition. But in its 17 May 1996 Resolution, the COMELEC 2nd Division dismissed the petition for disqualification, holding in its Resolution No. 2050 that

1. Any complaint for disqualification of a duly registered candidate based upon any of the grounds specifically enumerated under Sec. 68 of the Omnibus Election Code, filed directly with the Commission before an election in which respondent is a candidate, shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact been committed x x x x

In case such complaint was not resolved before the election, the Commission may motu propio, or on motion of any of the parties, refer the complaint to the Law Department of the Commission as the 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 x x x x

2. Any complaint for disqualification based on Sec. 68 of the Omnibus Election Code in relation to Sec. 6 of Republic Act No. 6646 filed after the election against a candidate who has already been proclaimed as a winner shall be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department of this Commission.

Where a similar complaint is filed after election but before proclamation of the respondent candidate, the complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. 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 said court may order the suspension of the proclamation if the evidence of guilt is strong.

As interpreted in the case of Silvestre v. Duavit, SPA 94-003, Resolution No. 2050 provides for the outright dismissal of the disqualification case in three cases: (1) The disqualification case was filed before the election but remains unresolved until after the election; (2) The disqualification case was filed after the election and before the proclamation of winners; and (3) The disqualification case was filed after election and after proclamation.

If the instant case is deemed to have been filed upon receipt by the COMELEC of the letter-complaint on April 26 1995, it nevertheless remained pending until after the election. If it is deemed to have been filed upon filing of the amended petition on 11 May 1995, it was clearly filed after the election. In either case, Resolution No. 2050 mandates the dismissal of the disqualification case.

His motion for reconsideration having been denied by the COMELEC En Banc, Sunga filed the instant petition contending that the COMELEC committed grave abuse of discretion in dismissing the petition for disqualification in that: first, Sec. 6 of RA No. 6646 requires the COMELEC to resolve the disqualification case even after the election and proclamation, and the proclamation and assumption of office by Trinidad did not deprive the COMELEC of its jurisdiction; second, COMELEC Resolution No. 2050 is null and void as it contravenes Sec. 6 of R.A. No. 6646; third, the fact that COMELEC authorized the filing of four (4) informations against private respondent for violation of the penal provisions of the Omnibus Election Code shows more than sufficient and substantial evidence to disqualify Trinidad, and he should have been so disqualified; and fourth, since Trinidad was a disqualified candidate, it is as if petitioner was the only candidate entitled to be proclaimed as the duly elected mayor.

In his 17-page Comment and Manifestation dated 3 December 1996, the Solicitor General concurred with petitioner's arguments.

Private respondent, on the other hand, postulates inter alia that Sunga's letters-complaint of 22 April 1995 and 7 May 1995 were not petitions for disqualification because no filing fee was paid by Sunga; the letters-complaint were never docketed by the COMELEC; and, no summons was ever issued by the COMELEC and private respondent was not required to answer the letters-complaint. It was only on 13 May 1995 when petitioner filed the so-called Amended Petition, docketed for the first time as SPA No. 95-213. Thus, the COMELEC correctly dismissed the disqualification case for having been filed only after the 8 May 1995 elections and the proclamation of private respondent on 10 May 1995, pursuant to COMELEC Resolution No. 2050.

COMELEC filed its Comment on 21 April 1997 relying heavily on Resolution No. 2050 and the Silvestre v. Duavit^[8] ruling in support of the dismissal of the disqualification case. The COMELEC insisted that the outright dismissal of a disqualification case was warranted under any of the following circumstances: (a) the disqualification case was filed before the election but was still pending (unresolved) after the election; (b) the disqualification case was filed after the election but before the proclamation of the winner; and, (c) the disqualification case was filed after the election and after the proclamation of the winner.

The issue in this case is whether the COMELEC committed grave abuse of discretion when it dismissed the disqualification case against private respondent Trinidad.

The petition is partly meritorious.

We find private respondent's arguments on the propriety of the letters-complaint puerile. COMELEC itself impliedly recognized in its Resolution that the petition was filed before the 8 May 1995 election in the form of letters-complaint, thus

This case originally came to the attention of this Commission on 26 April 1995 in a form of letter from petitioner accusing respondent of utilizing government properties in his campaign and praying for the latter's immediate disqualification. Another letter dated 7 May 1995 and addressed to the COMELEC Regional Director of Region II reiterated petitioner's prayer while alleging that respondent and his men committed acts of terrorism and violated the gun ban. Finally, on 11 May 1995, an Amended Petition was filed with the Clerk of Court of the Commission containing substantially the same allegations as the previous letters but supported by affidavits and other documentary evidence.

That the Amended Petition was filed only on 11 May 1995, or after the elections, is of no consequence. It was merely a reiteration of the charges filed by petitioner against private respondent on 26 April 1995 and 7 May 1995 or before the elections. Consequently, the Amended Petition retroacted to such earlier dates. An amendment which merely supplements and amplifies facts originally alleged in the complaint relates back to the date of the commencement of the action and is not barred by the statute of limitations which expired after the service of the original complaint.^[9]

The fact that no docket fee was paid therefor was not a fatal procedural lapse on the part of petitioner. Sec. 18, Rule 42, of the COMELEC Rules of Procedure provides, "If the fees above described are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or proceeding." The use of the word "may" indicates that it is permissive only and operates to confer a discretion on the COMELEC whether to entertain the petition or not in case of non-payment of legal fees. That the COMELEC acted on and did not dismiss the petition outright shows that the non-payment of fees was not considered by it as a legal obstacle to entertaining the same. Be that as it may, the procedural defects have been cured by the subsequent payment of docket fees, and private respondent was served with summons, albeit belatedly, and he submitted his answer to the complaint. Hence, private respondent has no cause to complain that no docket fee was paid, no summons served upon him, or that he was not required to answer.

Neither do we agree with the conclusions of the COMELEC. We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or directing the dismissal of a disqualification case filed before the election but which remained unresolved after the election. What the Resolution mandates in such a case is for the Commission to refer the complaint to its Law Department for investigation to determine whether the acts complained of have in fact been committed by the candidate sought to be disqualified. The findings of the Law Department then become the basis for disqualifying the erring candidate. This 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 of winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case.

Moreover, Resolution No. 2050 as interpreted in Silvestre v. Duavit infringes on Sec. 6 of RA No. 6646,^[10] which provides:

SEC. 6. Effects of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. 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 and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong (underscoring supplied).

Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon. The word "shall" signifies that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced.^[11] The implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre v. Duavit in effect disallows what RA No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasi-judicial bodies or administrative agencies must always be in perfect harmony with statutes and should be for the sole purpose of carrying their general provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails.

Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law.

The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification case. In Aguam v. COMELEC^[12] this Court held -

Time and again this Court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no bar to the exercise of such power. It of course may not be availed of where there has been a valid proclamation. Since private respondent's petition before the COMELEC is precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and law to COMELEC x x x x Really, were a victim of a proclamation to be precluded from challenging the validity thereof after that proclamation and the assumption of office thereunder, baneful effects may easily supervene.

It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate has been proclaimed elected does not signify that his disqualification is deemed condoned and may no longer be the subject of a separate investigation.

It is worth to note that an election offense has criminal as well as electoral aspects. Its criminal aspect involves the ascertainment of the guilt or innocence of the accused candidate. Like in any other criminal case, it usually entails a full-blown hearing and the quantum of proof required to secure a conviction is beyond reasonable doubt. Its electoral aspect, on the other hand, is a determination of whether the offender should be disqualified from office. This is done through an administrative proceeding which is summary in character and requires only a clear preponderance of evidence. Thus, under Sec. 4 of the COMELEC Rules of Procedure, petitions for disqualification "shall be heard summarily after due notice." It is the electoral aspect that we are more concerned with, under which an erring candidate may be disqualified even without prior criminal conviction.^[13]

It is quite puzzling that the COMELEC never acted on Sunga's motion to suspend the proclamation of Trinidad. The last sentence of Sec. 6 of RA No. 6646 categorically declares that the Commission may order the suspension of the proclamation of a candidate sought to be disqualified whenever the evidence of his guilt is strong. And there is not a scintilla of doubt that the evidence of Trinidad's guilt was strong as shown in the Report and Recommendation of the COMELEC Law Department

Parenthetically, there is merit to petitioner's petition against the respondent for disqualification for the alleged commission of election offenses under Sec. 68 of the Omnibus Election Code, such as use of armed men and act of terrorism, intimidation and coercion of voters, massive vote-buying and others, duly supported by affidavits of witnesses and other documents. Consequently, the petitioner's evidence supporting the disqualification of respondent remain unrebutted simply because respondent has expressly waived his right to present evidence in SPA No. 95-213 in his Manifestation and objection to the presentation of evidence in SPA No. 95-213 dated 16 June 1995, thus the waiver is the intentional relinquishing of a known right of respondent TRINIDAD.

In fact, on the basis of this Report and Recommendation the COMELEC directed the filing of four (4) criminal informations against Trinidad before the Regional Trial Court, an indication that there was indeed prima facie evidence of violation of election laws.

However, Sunga's contention that he is entitled to be proclaimed as the duly elected Mayor of the Municipality of Iguig, Province of Cagayan, in the event that Trinidad is disqualified finds no support in law and jurisprudence. The fact that the candidate who obtained the highest number of votes is later disqualified for the office to which he was elected does not entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a disqualified person may not be valid to install the winner into office or maintain him there. But in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was qualified, they should not be treated as stray, void or meaningless.^[14]

Sunga totally miscontrued the nature of our democratic electoral process as well as the sociological and psychological elements behind voters' preferences. Election is the process of complete ascertainment of the expression of the popular will. Its ultimate purpose is to give effect to the will of the electorate by giving them direct participation in choosing the men and women who will run their government. Thus, it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed winner and imposed as the representative of a constituency, the majority of whom have positively declared through their ballots that they do not choose him.^[15]

While Sunga may have garnered the second highest number of votes, the fact remains that he was not the choice of the people of Iguig, Cagayan. "The wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration of election in favor of the person who has obtained a plurality of votes and does not entitle a candidate receiving the next highest number of votes to be declared elected."^[16] In Aquino v. COMELEC,^[17] this Court made the following pronouncement:

To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances.

Also, what Sunga wants us to do is to disregard the express mandate of Sec. 44, RA No. 7160,^[18] which provides in part -

Sec. 44. Permanent vacancies in the office of the Governor, Vice-Governor, Mayor, Vice-Mayor. - (a) If a permanent vacancy occurs in the office of the Governor or Mayor, the Vice-Governor or Vice-Mayor concerned shall become the Governor or Mayor x x x x

For purposes of this chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns or is otherwise permanently incapacitated to discharge the functions of his office x x x x

This provision is echoed in Art. 83 of the Implementing Rules and Regulations of the Local Government Code of 1991.

The language of the law is clear, explicit and unequivocal, thus admits no room for interpretation but merely application. This is the basic legal precept. Accordingly, in the event that Trinidad is adjudged to be disqualified, a permanent vacancy will be created for failure of the elected mayor to qualify for the said office. In such eventuality, the duly elected vice-mayor shall succeed as provided by law.^[19]

WHEREFORE, the petition is PARTIALLY GRANTED. The 17 May 1996 and 30 July 1996 Resolutions of the COMELEC are ANNULLED and SET ASIDE. COMELEC is ordered to REINSTATE SPA No. 95-213, "Manuel C. Sunga v. Ferdinand B. Trinidad," for disqualification, and ACT on the case taking its bearings from the opinion herein expressed. No costs.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur.

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