Jainal vs Comelec

FACTS:

Petitioner Mayor Salip Aloy Jainal and private respondent Julhatab J. Talib were candidates for Mayor of Indanan, Sulu in the 10 May 2004 elections. On May 20, 2010, the Municipal Board of Canvassers (MBC) proclaimed Jainal as the winning candidate.

On 23 May 2004, Talib filed a pre-proclamation case with the COMELEC praying for the annulment of election returns pertaining to twenty-one (21) precincts, and for his proclamation as the Mayor. Talib claimed that his official watchers were asked to leave the precincts before the counting and the preparation of the election returns. Furthermore, the election returns for these precincts did not bear the signatures of the members of the Board of Election Inspectors (BEI) and his official watchers, a fact which indicates that said election returns were manufactured. Talib also noted that the number of votes cast exceeded the number of voters in Precinct Nos. 33A and 34A.

Jainal prayed for the dismissal of Talib’s petition, contending that the latter’s allegations were the proper subject of an election protest in the proper trial court.

On March 22, 2005, the COMELEC (2nd Division) issued a Resolution, granting the petition in part, annulling the election returns from nine precincts. The proclamation of Jainal was likewise annulled. Jainal filed a Motion for Reconsideration.

On September 18, 2006, the COMELEC en banc denied reconsideration but modified the resolution of its 2nd Division by declaring the election return pertaining to Precinct 9A of Barangay Adjid as valid.

Talib filed the instant petition, including Ahajan as private respondent in his capacity as Vice-Mayor, who, under the provisions of the Local Government Code, will fill up the vacancy created by the annulment of petitioner’s proclamation.

Vice-Mayor Hussi Ahajan Ahajan took his oath and assumed office as Acting Mayor pursuant to the COMELEC resolutions of 22 March 2005 and 18 September 2006.

Jainal likewise filed Extreme Urgent Ex-Parte Manifestation before the COMELEC EN BANC praying for an order suspending the implementation and execution of the 22 March 2005 and 18 September 2006 COMELEC resolutions.

On 5 October 2006, the COMELEC granted the Extreme Urgent Ex-Parte Manifestation of Jainal and ordered Hussi Ahajan (Vice Mayor) to cease and desist from assuming the position of Acting Mayor.

Ahajan questions the validity of the 5 October 2006 Order of the COMELEC which directed him, as Vice-Mayor, or any ranking councilor to cease and desist from assuming the position of Acting Mayor.

ISSUE:

Whether or not the COMELEC rightfully issued the 5 October 2006 Order directing the Vice Mayor to cease and desist from assuming the position of Acting Mayor.

HELD: No.

Under Sec. 13, Rule 18 of the COMELEC Rules of Procedure, a decision or resolution of the Commission en banc in Special Actions and Special Cases shall become final and executory after five (5) days from its promulgation unless restrained by this Court. The effects of the 22 March 2005 and 18 September 2006 resolutions can no longer be suspended not only because the resolutions are already final and executory but also because the power to suspend enforcement lies only with this Court. Thus, in granting the motion and ordering the Vice-Mayor or any ranking councilor to cease and desist from assuming the position of Acting Mayor of Indanan, Sulu, it committed what amounts to a usurpation of this Courts prerogative that is to issue the TRO which is precisely one of the reliefs sought in the present petition. It behooved the COMELEC en banc to deny or at least refuse to take action on the Extreme Urgent Ex-Parte Manifestation.

With the nullification of petitioners proclamation, the position of Municipal Mayor of Indanan, Sulu is vacant. The Local Government Code is clear on the matter of succession.

Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. ─ 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. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest-ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein:

(b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay.

(d) The successors as defined herein shall serve only the unexpired terms of their predecessors.

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.

Verily, the vacancy created by the nullification of petitioner’s proclamation is in the nature of a permanent vacancy and may be qualified as a permanent incapacity to discharge the functions of his office. Ahajans assumption of the office of Mayor should be understood as subject to the result of the recount to be conducted in accordance with the issuances of the COMELEC. Thus, there is an immediate need for the COMELEC to speedily ascertain the true will of the electorate in the eight (8) precincts whose election returns were nullified. (G.R. No. 174551, March 7, 2007)