Before this Court is a petition for certiorari and prohibition with prayer for temporary restraining order under Rule 64 of the 1997 Rules of Civil Procedure seeking to set aside the August 3, 2001 En Banc Resolution of the Commission on Elections (COMELEC) in SPC No. 01-195.

Felix Barot (petitioner) and Rolando Tabaloc (private respondent) were candidates for councilor of Tanjay City, Negros Oriental in the May 14, 2001 elections.^[1]

On May 17, 2001, the Board of Canvassers (BOC) of Tanjay City proclaimed the winning candidates for mayor, vice-mayor, and ten councilors including petitioner who was proclaimed the 10^th.^[2]

On May 29, 2001, BOC Chair Erlinda H. Nochefranca sent a Memorandum^[3] to the COMELEC En Banc requesting for authority to correct the erroneous entries in the Certificate of Canvass of Votes and Proclamation of the Winning Candidates,^[4] and to proclaim private respondent in place of petitioner. In said Memorandum, Nochefranca alleged that the erroneous entries were made due to oversight as a result of which votes for some candidates for mayor down to the city councilors were increased and petitioner was inadvertently proclaimed as the 10^th winning member of the Sangguniang Panlungsod when it should have been private respondent who actually received more votes than petitioner.

Attached to the Memorandum was a Sworn Statement^[5] executed by Assistant City Treasurer Virginia C. Reyes who was the tabulator of the BOC wherein she alleged that in the course of transferring the entries from the Statement of Votes to the Summary of Votes, she erred "by copying the grand totals instead of the subtotals per page," thus overstating several entries appearing in the Summary of Votes.

The COMELEC, which docketed the Memorandum of Nochefranca as SPC No. 01-195 (the petition), set it for hearing on June 13, 25 and 27, 2001 during which the members of the BOC presented evidence.  No appearance was made by or for petitioner.  The COMELEC thereafter required the candidates to file their respective comments to the petition.^[6]

Petitioner subsequently filed an opposition^[7] to the petition on the following grounds:

1.      This Honorable Commission has no jurisdiction to rule on this Petition because it was filed outside the mandatory periods for filing petitions of this nature and that there is no proof that proper filing and docketing fees have been paid.

2.      The petitioner is not a proper party in filing this petition. The filing of this petition does not speak well of what the COMELEC stands for which is an impartial body and does not side any candidate or party.

3.      The correction of manifest errors is proper only before proclamation of a winning candidate[;] after proclamation[,] the proper action is an election protest.^[8]

By the assailed Resolution of August 3, 2001,^[9] the COMELEC En Banc granted the petition and disposed as follows:

WHEREFORE, the premises considered, this Commission RESOLVED, as it hereby RESOLVES, to GRANT the instant petition requesting for authority to correct erroneous entries in the certificate of canvass of votes and proclamation of winning candidates for city offices in the City of Tanjay, Negros Oriental. The proclamation  of herein respondent FELIX BAROT as the tenth (10^th) winning candidate for the position of Member of Sangguniang Panlungsod of Tanjay City is hereby ordered SUSPENDED and/or if one has already been made, the same is hereby ordered ANNULED.

ACCORDINGLY, the City Board of Canvassers of Tanjay City is hereby directed to RECONVENE and effect the necessary corrections in the Certificates of Canvass and Proclamation of Winning Candidates in the City of Tanjay and on the basis thereof PROCLAIM the winning candidates according to their ranks.  (Underscoring supplied)

Hence, the present petition upon the following grounds:

1.      The respondent COMELEC denied the petitioner his day in Court when it railroaded the hearing of the case in the Commission a quo. While it gave the petitioner the opportunity to be heard, the observance of due process was but a farce and diluted exercise.

2.      This COMELEC had no jurisdiction to rule on the Petition filed by the City Board of Canvassers of Tanjay City because it was filed outside the mandatory periods for filing petitions of this nature and that there is no proof that proper filing and docketing fees have been paid.

3.      The respondent City Board of Canvassers of Tanjay City is not a proper party in filing the original petition before the COMELEC. The filing of the petition [SPC-01-195] does not speak well of what the COMELEC stands for, which is an impartial body and does not side with any candidate or party.

4.      The correction of manifest errors is proper only before proclamation of a winning candidate[;] after proclamation[,] the proper action is an election contest.

5.      The private respondent Rolando Tabaloc has filed an Election Protest now docketed as EPC NO. 2001-51, this change of position of respondent Tabaloc should be construed as a tacit recognition of the due election of your petitioner Felix Barot.^[10]

By Resolution of August 21, 2001, this Court granted a Temporary Restraining Order^[11] enjoining the COMELEC and the BOC to cease and desist from implementing the assailed COMELEC Resolution of August 3, 2001.

In the present petition, petitioner posits that as the dates of hearing of the petition scheduled by the COMELEC were "too successive in nature without taking into account that petitioner comes from the province," he was denied due process, and had he been given his day, he would have proven his detractors wrong.^[12]

And petitioner maintains that the COMELEC has no jurisdiction over the petition as it was filed beyond the reglementary period. For, so petitioner contends, since the proclamation was made on May 17, 2001, the petition to correct manifest error should have been filed within 5 days thereafter or a petition to annul proclamation should have been filed within 10 days also thereafter, citing the case of Mentang v. Commission on Elections.^[13]

In another vein, petitioner posits that even if there were manifest errors in the Certificate of Canvass of Votes, correction should have been done before proclamation,^[14] he citing Section 34 of COMELEC Resolution No. 3848 which provides:

SECTION 34. Manifest Error. (a) Where it is clearly shown before proclamation that manifest errors were committed in the tabulation or the tallying of election returns, or certificates of canvass, during the canvassing, the Board may motu propio, or upon verified petition by any candidate, political party, organization or coalition of political parties, after due notice and hearing, correct the errors committed.

There is manifest error in the tabulation or tallying of the results during canvassing where:

1.      A copy of the Election Returns/Certificate of Canvass was tabulated more than once;

2.      Two or more copies of the Election Returns of one precinct, or two or more copies of Certificate of Canvass of one city or municipality were tabulated;  

3.      There was a mistake in the copying of the figures from the Election Return/ Certificate of Canvass into the Statement of Votes;

4.      Election Returns from non-existent precincts were included in the canvass for another district; or

5.      There was a mistake in the addition of the votes of any candidate.

x x x (Emphasis and underscoring supplied)

Finally, petitioner posits that there is no proof that proper filing and docketing fees were paid, hence, the COMELEC did not acquire jurisdiction over the petition, and that Nochefranca is not among those who may file an action before the COMELEC, he citing Sections 2 and 3, Rule 5 of the COMELEC Rules of Procedure^[15] which read:

Section 2. Who may be parties. Only natural or juridical persons or entities duly authorized by law, such as a voter, a candidate, or registered political parties, organization or coalition of political parties, including parties or organizations under the party list system, and any such person permitted by these Rules to bring an action or proceeding may be parties in any action or proceeding before the Commission.

Section 3. Parties in Interest. All actions filed with the Commission must be prosecuted and defended in the name of the real party in interest. (Italics in the original)

The present petition is bereft of merit.

As correctly argued by the COMELEC, while petitioner was unable to attend the scheduled hearings of the petition, he was given the opportunity to file his comment thereon and he in fact filed an opposition thereto. Petitioner was thus able to air his side of the case.^[16]

Due process does not necessarily mean or require a hearing, but simply an opportunity or right to be heard. One may be heard, not solely by verbal presentation but also perhaps many times more creditably and predictable than oral argument, through pleadings.

x x x
The essence of due process is simply an opportunity to be heard or as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek reconsideration of the action or ruling complained of. A formal or trial type hearing is not at all times and in all instances essential. The requirements are satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is the absolute lack of notice or hearing.^[17] (Emphasis supplied; citations omitted)

As to the claim that the petition was not filed within the reglementary period, it should be noted that the 5-day period to file a petition for correction may be done after proclamation as provided under paragraph (b), Section 5, Rule 27 of the COMELEC Rules:

Section 5. Pre-proclamation Controversies Which May Be Filed Directly with the Commission.

x x x
(b)    If the petition involves the illegal composition or proceedings of the board under subparagraph (1) of paragraph (a) above, it must be filed immediately when the board begins to act as such, or at the time of the appointment of the member whose capacity to sit as such is objected to if it comes after the canvassing of the board, or immediately at the point where the proceedings are or begin to be illegal.

If the petition is for correction, it must be filed not later than five (5) days following the date of proclamation and must implead all candidates who may be adversely affected thereby.

x x x (Emphasis and underscoring supplied)

The petition may also be made before proclamation as provided in Section 34 of Resolution No. 3848 which furnishes instructions for the Municipal, City, District and Provincial Boards of Canvassers in connection with the May 14, 2001 national and local elections.

At all events, Section 4, Rule 1 of the COMELEC Rules provides:

Section 4. Suspension of the Rules. In the interest of justice and in order to obtain speedy disposition of all the matters pending before the Commission, these rules or any portion thereof may be suspended by the Commission. (Italics in the original; emphasis and underscoring supplied)

The COMELEC thus has the discretion to suspend its rules or any portion thereof in the interest of justice such that even if the petition was filed 12 days after the proclamation, the COMELEC may, in the interest of justice, disregard the reglementary periods provided by the rules and resolve the matter filed before it.

As to the allegation of lack of proof of proper payment of filing and docketing fees, the COMELEC Rules of Procedure provides:

Rule 40 Fees and Charges
x x x
Section 8. Where fees are to be paid. The fees herein before provided shall be paid by the party concerned to the Cash Division, Administrative Services Department of the Commission, at the time of request or demand. If the fees are not paid, the Commission may refuse to take action thereon until they are paid.  (Emphasis and underscoring supplied)

From the immediately-quoted COMELEC Rule, even assuming arguendo that the required fees were not paid, the COMELEC has the discretion to take action or not in a case.  But even if it was not afforded such discretion, as discussed above, it can suspend its rules or any portion thereof in the interest of justice.

On the claim that the petition was not filed by the proper party, the same does not lie.  For under the earlier-quoted Section 34 of Resolution No. 3848, the BOC may even motu propio, after due notice and hearing, correct errors committed in the tabulation. What should prevent it from itself filing the petition for correction before the COMELEC?

WHEREFORE, the petition is hereby DISMISSED for lack of merit. The Temporary Restraining Order issued on August 21, 2001 is hereby LIFTED. The COMELEC and the City Board of Canvassers of Tanjay City are hereby DIRECTED to implement COMELEC En Banc Resolution dated August 3, 2001 issued in SPC No. 01-195.

Costs against petitioner.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr., and Azcuna, JJ., concur.

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^[1] Rollo at 4-5.

^[2] Id. at 21.

^[3] Id. at 22-23.

^[4] Ibid.

^[5] COMELEC Records at 5-7.

^[6] Rollo at 117.

^[7] COMELEC Records at 76-83.

^[8] Id. at 77.

^[9] Id. at 124-135.

^[10] Rollo at 7-8.

^[11] Id. at 81-82.

^[12] Id. at 8.

^[13] 229 SCRA 666 (1994).

^[14] Rollo at 9-11.

^[15] Id. at 11-12.

^[16] Id. at 120.

^[17] Trinidad v. COMELEC, 315 SCRA 175 (1999) citing Paat v. Court of Appeals, 266 SCRA 167 (1997).