The instant petition for certiorari under Rule 65 of the Rules of Court assails Resolution No. 8212^[1] of the Commission on Elections (COMELEC) sitting en banc, dated June 28, 2007, insofar as SPC Case No. 07-212 is concerned. Petitioner Randy C. Cambe contends that the COMELEC en banc gravely abused its discretion in dismissing petitioner's appeal from the May 22, 2007 Ruling^[2] of public respondent Municipal Board of Canvassers (MBC) of Lasam, Cagayan, which granted herein private respondent Dominador M. Go's petition to exclude from the canvass Election Return No. 9601666 (for clustered precinct numbers 66A and 68, Barangay Nabannagan East), resulting in the proclamation on even date of Go as the duly elected eighth (8^th) Member of the Sangguniang Bayan of Lasam, Cagayan.

Petitioner and Go were candidates during the May 14, 2007 elections for Sangguniang Bayan members of the municipality of Lasam, Cagayan, where eight seats were at stake. On May 15, 2007, when Election Return No. 9601666 for clustered precinct numbers of 66A and 68 was presented for canvassing, Go orally moved for its exclusion on the ground that said return was allegedly manufactured. He alleged that the integrity of said return is questionable as the total number of votes cast for the vice-mayoralty candidates exceeded the number of registered voters.^[3] This was followed by the written petition/opposition^[4] filed by Go on May 17, 2007, stating that the canvass of the contested return will affect the 8^th position in the Municipal Councilor race.

Should the alleged manufactured election return be included in the canvassing, petitioner would land on the 8^th seat in the Sangguniang Bayan leading by 21 votes over Go who would occupy the 9^th slot. On the other hand, if the said return will be excluded, Go would advance to the 8^th place with a six-vote lead over petitioner.^[5]

In the meantime, the MBC proclaimed the winners for the position of mayor, vice-mayor, and 7 Sangguniang Bayan Members, leaving the canvassing of the questioned return for the 8^th slot, pending.^[6]

On May 21, 2007, the MBC issued a notice directing petitioner to file his comment/opposition to the petition within 24 hours from receipt of said notice.^[7]

At 9:00 in the morning of May 22, 2007, the MBC issued a ruling excluding Election Return No. 9601666 on the ground of "fraud, material defect, tamper[ing], and statistical improbability."^[8] On the same day, the MBC proclaimed Go as the 8^th duly elected member of the Sangguniang Bayan of the Municipality of Lasam, Cagayan.^[9]

At 1:35 in the afternoon of May 22, 2007, petitioner filed his written opposition to the petition for exclusion.^[10] At 4:30 p.m. of May 25, 2007, a Friday, petitioner received a copy of the ruling of the MBC.^[11] On May 28, 2007, a Monday, he filed a notice of appeal with the MBC,^[12] and thereafter an appeal memorandum^[13] with the COMELEC on May 30, 2007.

On June 28, 2007, the COMELEC en banc issued the assailed Resolution with an annex of the list of cases that shall continue to be heard by the Commission. SPC Case No. 07-212 was not included in the list hence, it was deemed dismissed and terminated. The full text of the Resolution, reads:

WHEREAS, in connection with the May 14, 2007 National and Local Election various petitions docketed as Special Action, Special Cases and Special Proceeding Cases and other contentious cases were filed with the Office of the Clerk of the Commission;

WHEREAS, the second paragraph of Sec. 16, Republic Act No. 7166 provides:

"All pre-proclamation cases pending before the Commission shall be deemed terminated at the beginning of the term of office involved and the rulings of the boards of canvassers concerned shall be deemed affirmed, without prejudice to the filing of a regular election protest by the aggrieved party. However, proceeding may continue when on the basis of the evidence thus far presented, the Commission determines that the petition appears meritorious and accordingly issue an order for the proceeding to continue or when appropriate order has been issued by the Supreme Court in a petition for certiorari."

WHEREAS, the Commission has disposed of the pre-proclamation and other cases brought before it for adjudication, except those whose disposition requires proceeding extending beyond 30 June 2007;

NOW, THEREFORE, by virtue of its powers under the Constitution, the Omnibus Election Code, Batas Pambansa Blg. 881, Republic Act. Nos. 6646 and 7166, and other election laws, the Commission RESOLVES:

1. All cases which were filed by private parties without timely payment of the proper filing fee are hereby dismissed;
   
   
2. All cases which were filed beyond the reglementary period or not in the form prescribed under appropriate provisions of the Omnibus Election Code, Republic Act Nos. 6646 and 7166 are hereby likewise dismissed;
   
   
3. All other pre-proclamation cases which do not fall within the class of cases specified under paragraphs (1) and (2) immediately preceding shall be deemed terminated pursuant to Section 16, R.A. 7166 except those mentioned in paragraph (4). Hence, all the ruling of the boards of canvassers concerned are deemed affirmed. Such boards of canvassers are directed to reconvene forthwith, continue their respective canvass and proclaim the winning candidates accordingly, if the proceedings were suspended by virtue of pending pre-proclamation case;
   
   
4. All remaining pre-proclamation cases, which on the basis of the evidence thus far presented, appear meritorious and/or are subject of orders by the Supreme Court or this Commission in petitions for certiorari brought respectively to them shall likewise remain active cases, thereby requiring the proceedings therein to continue beyond 30 June 2007, until they are finally resolved; and
   
   
5. All petitions for disqualification, failure of elections or analogous cases, not being pre-proclamation controversies and, therefore, not governed by Section 17, 18, 19, 20, 21, and particularly, by the second paragraph of Sec. 6, Republic Act No. 7166, shall remain active cases, the proceedings to continue beyond June 30, 2007, until the issues therein  are finally resolved by the Commission;
   

ACCORDINGLY, it is hereby ordered that the proceedings in this cases appearing on the list annexed and made an integral part thereof, be continued to be heard and disposed of by the Commission.

This resolution shall take effect immediately.

Let the Clerk of the Commission implement this resolution by appropriate notices to the parties concerned and the Department of Interior and Local Government. The Education and Information Department shall cause the immediate publication of this resolution in two (2) newspapers of general circulation.

SO ORDERED.^[14]

Hence, the instant petition.

Petitioner contends that the COMELEC gravely abused its discretion in excluding Election Return No. 9601666 in the canvas of votes which led to the proclamation of Go as the 8^th elected member of the Sangguniang Bayan. He prays for the annulment of Go's proclamation as well as Resolution No. 8212 of the COMELEC insofar as it upheld the ruling of the MBC. On the other hand, the Office of the Solicitor General argues that the MBC correctly excluded the subject election return because the same was tampered and statistically improbable. It further claims that the Court, not being a trier of facts, is without jurisdiction to review the factual findings of the MBC as affirmed by the COMELEC.

The issues for resolution are the following:

1) Whether the COMELEC en banc had jurisdiction over pre-proclamation controversies in the first instance;
2) Whether the proclamation of Go is valid.
3) Whether the COMELEC acted properly in sustaining the ruling of the MBC which outrightly excluded the questioned election return.

Although not raised as an issue, the Court is empowered to address the first issue which is both constitutional and jurisdictional.^[15] The consistent ruling of the Court is that, the Commission en banc does not have jurisdiction in the first instance, whether original or appellate, over election cases, pre-proclamation controversies, and incidents thereof. When such disputes are filed before or elevated to the Commission, they should be heard and adjudicated first at the division level.^[16] This doctrine is anchored on Section 3, Article IX-C of the Constitution which established the two-tiered organizational and functional structure of the COMELEC. The provision requires that election cases, including pre-proclamation controversies, should be heard and decided first at the division level. It reads, thus:

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.

It is important to clarify, however, that not all cases relating to election laws filed before the COMELEC are required to be first heard by a division. Under the Constitution, the COMELEC exercises both administrative and quasi-judicial powers. The COMELEC en banc can act directly on matters falling within its administrative powers. It is only when the exercise of quasi-judicial powers is involved that the COMELEC is mandated to decide cases first in division, and then, upon motion for reconsideration, en banc.^[17]

In the instant controversy, the case filed by petitioner involving Election Return No. 9601666 which the MBC found to be fraudulent, tampered, and statistically improbable, is a pre-proclamation case^[18] requiring the COMELEC's exercise of quasi-judicial powers.^[19] The same should have been decided at the first instance by a division of the COMELEC, especially so that petitioner filed his appeal not with the en banc but with a division of the COMELEC.^[20] Failing to comply with the constitutional and jurisprudential requirements, Resolution No. 8212 must therefore be declared void insofar as the instant case is concerned.

Anent the second issue, we rule that Go's proclamation is invalid for non-compliance with the mandatory requirements of Section 20 of R.A. No. 7166,^[21] which provides:

(f) After all the uncontested returns have been canvassed and the contested returns ruled upon by it, the board shall suspend the canvass. Within forty-eight (48) hours therefrom, any party adversely affected by the ruling may file with the board a written and verified notice of appeal; and within an unextendible period of five (5) days thereafter, an appeal may be taken to the Commission.

(g) Immediately upon receipt of the notice of appeal, the board shall make an appropriate report to the Commission, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report.

(h) On the basis of the records and evidence elevated to it by the board, the Commission shall decide summarily the appeal within seven (7) days from receipt of the said records and evidence. Any appeal brought before the Commission on the ruling of the board, without the accomplished forms and the evidence appended thereto, shall be summarily dismissed.

The decision of the Commission shall be executory after the lapse of seven (7) days from receipt thereof by the losing party.

(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election. (Emphasis supplied)

It is clear from the foregoing that after the board has ruled on the petition for exclusion, it is duty bound to suspend the proclamation to give the other party an opportunity to question the ruling by filing a notice of appeal with the board within 48 hours from the suspension of the proceedings, and of an appeal with the COMELEC, within five days from the same suspension. Failure to comply with these requirements renders the proclamation void ab initio.

In Jainal v. Commission on Elections,^[22] a pre-proclamation case filed by mayoralty candidate Julhatab Talib, the Court affirmed the order of the COMELEC annulling the proclamation of his rival, Salip Aloy Jainal, for having been made immediately after the board ruled on the objection of Talib. Thus:

[I]t was the MBC who did not comply with its duties under Sec. 20 of R.A. No. 7166. When Talib made his objections to the inclusion of the contested election returns, there was no other recourse for the MBC except to rule on the objections, suspend the canvass of the contested election returns, and suspend the proclamation of petitioner, in that sequence. Instead of doing so, the MBC, after ruling on the objections, included the contested returns in the canvass and immediately proclaimed petitioner. (Emphasis supplied)

These actions of the MBC rendered it impossible for Talib to comply with Sec. 20 of R.A. No. 7166 any further. It should be noted that the forty-eight (48)-hour period for filing a verified notice of appeal with the MBC is reckoned from suspension of the canvass. The appeal to the COMELEC is also reckoned five (5) days from suspension of the canvass. Understandably, Talib had no other recourse but to go directly to the COMELEC.

It is worthy of note that what was filed with and resolved by the poll body is a pre-proclamation case. Pre-proclamation cases refer to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of election returns.

The general rule is that a pre-proclamation case before the COMELEC is, logically, no longer viable after a proclamation has been made. However, this rule admits of exceptions, as when the proclamation is null and void. The proclamation of petitioner in this case is void for three (3) reasons: (1) it was based on a canvass that should have been suspended with respect to the contested election returns; (2) it was done without prior COMELEC authorization which is required in view of the unresolved objections of Talib to the inclusion of certain returns in the canvass; and (3) it was predicated on a canvass that included unsigned election returns involving such number of votes as will affect the outcome of the election. In this regard, it has long been recognized that among the reliefs that the COMELEC may grant is to nullify a proclamation or suspend the effects of one.

In this case, the proclamation of Go is void because it was based on a canvass that outrightly excluded an election return, which as admitted by both petitioner^[23] and Go,^[24] would determine who between them would advance to the 8^th position as member of the Sangguniang Bayan. Moreover, said proclamation was done immediately after the MBC issued its ruling on the petition for exclusion. As held in Espidol v. Commission on Elections,^[25] the action of the MBC constituted a deprivation of the right to appeal the ruling to the COMELEC, violating Section 20 (i) of R.A. No. 7166.

The rationale for declaring void such hasty proclamation is elucidated thus:

A pattern of conduct observed in past elections has been the "pernicious grab-the-proclamation-prolong-the-protest-slogan" of some candidates or parties." Really, were a victim of a proclamation be precluded from challenging the validity thereof after that proclamation and the assumption of office thereunder, baneful effects may easily supervene. It may not be out of place to state that in the long history of election contests in this country, as served in Lagumbay v. Climaco, successful contestant in an election protest often wins but "a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire or has expired." Protests, counter-protests, revisions of ballots, appeals, dilatory tactics, may well frustrate the will of the electorate. And what if the protestant may not have the resources and an unwavering determination with which to sustain a long drawn-out election contest? In this context therefore all efforts should be strained - as far as is humanly possible - to take election returns out of the reach of the unscrupulous; and to prevent illegal or fraudulent proclamation from ripening into illegal assumption of office.^[26]

The last issue relates to the proper treatment which should have been accorded to the questioned return at the COMELEC division level and the appropriate course of action which should have been taken at the canvassing board level.

As a rule, as long as the returns appear to be authentic and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify the allegations of irregularities in the casting or the counting of the votes. Corollarily, technical examination of voting paraphernalia involving analysis and comparison of voters; signatures and thumbprints thereon is prohibited in pre-proclamation cases which are mandated by law to be expeditiously resolved without involving evidence aliunde and examination of voluminous documents which take up much time and cause delay, defeating the public policy underlying the summary nature of pre-proclamation controversies.

However, in Lee v. Commission on Elections,^[27] involving a petition of a candidate for mayor seeking the exclusion of an election return on the ground that the same bears no entries for the position of congressman, the Court explained that the aforestated restrictive doctrine on the examination of election returns presupposes that said returns appear to be authentic and duly accomplished on their face. But when there is a prima facie showing that the return is not genuine, as where several entries were omitted in the questioned election return, the doctrine does not apply. The COMELEC is thus not powerless to determine if there is basis for the exclusion of the controverted election return.

In the instant case, Election Return No. 9601666 cannot be considered as regular or authentic on its face inasmuch as the total votes cast for the vice-mayoralty position, which is 288, exceeded the total number of the voters who actually voted (230)^[28] and the total number of registered voters (285).^[29] The COMELEC therefore is clothed with ample authority to ascertain under the procedure outlined in the Omnibus Election Code (OEC) the merits of the petition to exclude Election Return No. 9601666.

Sections 235 and 236 of the OEC read:

Sec. 235. When election returns appear to be tampered with or falsified.-If the election returns submitted to the board of canvassers appear to be tampered with, altered or falsified after they have left the hands of the board of election inspectors, or otherwise not authentic, or were prepared by the board of election inspectors under duress, force, intimidation, or prepared by persons other than the member of the board of election inspectors, the board of canvassers shall use the other copies of said election returns and, if necessary, the copy inside the ballot box which upon previous authority given by the Commission may be retrieved in accordance with Section 220 hereof. If the other copies of the returns are likewise tampered with, altered, falsified, not authentic, prepared under duress, force, intimidation, or prepared by persons other than the members of the board of election inspectors, the board of canvassers or any candidate affected shall bring the matter to the attention of the Commission. The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass.

SEC. 236. Discrepancies in election returns. - In case it appears to the board of canvassers that there exists discrepancies in the other authentic copies of the election returns from a polling place or discrepancies in the votes of any candidate in words and figures in the same return, and in either case the difference affects the results of the election, the Commission, upon motion of the board of canvassers or any candidate affected and after due notice to all candidates concerned, shall proceed summarily to determine whether the integrity of the ballot box had been preserved, and once satisfied thereof shall order the opening of the ballot box to recount the votes cast in the polling place solely for the purpose of determining the true result of the count of votes of the candidates concerned.

In Balindong v. Commission on Elections,^[30] the Court interpreted the foregoing provisions to mean that "in cases where the election returns appear to have been tampered with, altered or falsified, the prescribed modality is for the COMELEC to examine the other copies of the questioned returns and if the other copies are likewise tampered with, altered, falsified, or otherwise spurious, after having given notice to all candidates and satisfied itself that the integrity of the ballot box and of the ballots therein have been duly preserved, to order a recount of the votes cast, prepare a new return which shall be used by the board of canvassers as basis for the canvass, and direct the proclamation of the winner accordingly."

If the integrity of the ballot box had been violated, there would be no need to open it. If not, and upon opening there is evidence that the integrity of the ballots had been violated, there would be no recounting thereof, and the COMELEC would then seal the box and order its safekeeping.^[31] Thus, Section 237 of the OEC provides:

Sec. 237. When integrity of ballots is violated. - If upon the opening of the ballot box as ordered by the Commission under Sections 234, 235 and 236, hereof, it should appear that there are evidence or signs of replacement, tampering or violation of the integrity of the ballots, the Commission shall not recount the ballots but shall forthwith seal the ballot box and order its safekeeping.

The same procedure was emphasized by the Court in Jainal v. Commission on Elections^[32] in upholding the course of action taken by the COMELEC. Pertinent portion thereof explained that -

Indeed, the COMELEC did not instantaneously nullify the questioned election returns as claimed by petitioner. Utilizing the first procedure contained in the first sentence of Sec. 235, the COMELEC used other copies of said suspect election returns, namely the election returns submitted by Talib. When this was not enough, it even resorted to an examination of the COMELEC copies. And when it was evident that the election returns for the nine (9) precincts were manufactured or fabricated because the printed names and signatures of the members of the BEI were absent, it was only then that the COMELEC annulled the said election returns and petitioner's proclamation.

With the finding that the election returns were manufactured, the COMELEC further ordered the Election Officer in Jainal to:

[C]onvene the Board of Election Inspectors in the abovementioned precincts, after notifying the parties concerned and after ensuring that the integrity of the ballot boxes and the ballots are not compromised, in order to recount the ballots cast in the abovementioned precincts. After the recount, the new results will be canvassed and the mayoralty winner proclaimed. If a recount is deemed not possible, he is to make a report to the Commission so that a special election may be immediately scheduled in the affected precincts.^[33]

In the instant case, the MBC, without complying with Section 235 of the OEC, outrightly excluded Election Return No. 9601666. Worse, the COMELEC found nothing irregular in the procedure taken by the MBC. The precipitate exclusion from the canvass of the return for Precincts 66A and 68 resulted in the unjustified disenfranchisement of the voters thereof.

WHEREFORE, the petition is GRANTED. Resolution No. 8212 of the Commission on Elections en banc dated June 28, 2007 is SET ASIDE insofar as SPC Case No. 07-212 is concerned. The Commission is ordered to raffle said case to one of its divisions, which is hereby directed to resolve the same with deliberate dispatch. In the meantime, the position for the eighth (8^th) Member of the Sangguniang Bayan of Lasam, Cagayan is DECLARED VACANT.

SO ORDERED.

Puno, C.J., Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Velasco, Jr., Nachura, Reyes, and Leonardo-De Castro, JJ., concur.
Chico-Nazario, J., on official leave.

---

^[1] Rollo, p. 30.

^[2] Id. at 48.

^[3] Minutes, rollo, pp. 77-78.

^[4] Rollo, p. 86.

^[5] Id. at 6.

^[6] Id. at 78 and 91.

^[7] Id. at 90.

^[8] Id. at 48.

^[9] Id. at 92.

^[10] Id. at 93.

^[11] Id. at 48.

^[12] Id. at 71.

^[13] Id. at 49, docketed as SPC Case No. 07-212.

^[14] Id. at 30-32.

^[15] Municipal Board of Canvassers of Glan v. Commission on Elections, G.R. No. 150496, October 23, 2003, 414 SCRA 273, 275.

^[16] Id., citing Sarmiento v. Commission on Elections, G.R. No. 105628, August 6, 1992, 212 SCRA 307 and Balindong v. Commission on Elections, G.R. Nos. 153991-92, October 16, 2003, 413 SCRA 583.

^[17] Municipal Board of Canvassers of Glan v. Commission on Elections, supra at 276.

^[18] A pre-proclamation controversy is defined as referring "to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns." Issues that may be raised in a pre-proclamation controversy are as follows:

(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in another authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;
(c) The election returns were prepared under duress, threats, coercion or intimidation, or they are obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. (Espidol v. Commission on Elections, G.R. No. 164922, October 11, 2005, 472 SCRA 380, 402-403.)

^[19] Municipal Board of Canvassers of Glan v. Commission on Elections, supra at 276.

^[20] Rollo, p. 49.

^[21] "AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS AND FOR ELECTORAL REFORMS, AUTHORIZING APPROPRIATIONS THEREFOR, AND FOR OTHER PURPOSES."

^[22] G.R. No. 174551, March 7, 2007, 517 SCRA 799, 813-815.

^[23] Rollo, p. 6.

^[24] Id. at 86.

^[25] Supra note 18 at 406.

^[26] Id. at 410.

^[27] G.R. No. 157004, July 4, 2003, 405 SCRA 363, 368.

^[28] Rollo, p. 77.

^[29] Id. at 91.

^[30] Supra note 16 at 595.

^[31] Lee v. Commission on Elections, supra at 375.

^[32] Supra note 22 at 818-819.

^[33] Id. at 806.