Petitions for writs of certiorari and prohibi­tion to review and set aside a Resolution of the Commission on Elections in its Case No. RR-698, dated 2 February 1970, whereby the Commission unanimously rejected the returns for 21 precincts of Itbayat, Ivana, Mahatao, Uyugan, and Sabtang, all of the province of Batanes, for having been "prepared at gunpoint"; annulled and set aside the proclamation of Rufino Antonio, Jr. by the Provin­cial Board of Canvassers on 13 November 1969; and by majority vote ordered said Board of Canvassers to convene immediately and recanvass the results of the election for the lone congressional district of the province of Batanes, on the basis of the remaining returns for Precincts I, 1A, 2 , 3, 3A, 4, 5, 6 and 7 of Basco and Precinct No. 4 of Sabtang, and to proclaim the winner on 10 February 1970, unless restrained by the Supreme Court; and directing the Recording Secretary to furnish copies of said Resolution to the President, the Speaker and Secretary, House of Representatives, and the House Electoral Tribunal.

The Commission on Elections (COMELEC for short) found, among other things, that after the national elections held on 11 November 1969the Provincial Board of Canvassers of the Province of Batanes was convened for 12 November 1969 at 8:30 o'clock p. m.  Three members failed to attend: the Vice-Governor and two members of the Provincial Board.  In view of their absence, the Provincial Fiscal, as Chairman of the Board of Canvas­sers, asked the Officer-in-charge, COMELEC, Batanes, to appoint subs­titutes for the absent members, which was done.  Thereafter, the Board immediately proceeded with the canvass, recessed at two o'clock, past midnight, to resume at 10:00 o'clock a. m., 13 November 1969, and com­pleted the canvass at 3:00 o'clock in the afternoon.  Immediately thereafter, the canvassers proclaimed independent candidate Rufino Antonio, Jr.  Cong­ressman-elect for the lone congressional district of Batanes and, some time later, he took his oath of office.

On 26 November and 3 December 1969, Jorge A. Abad, Liberal Party official candidate, and Mrs. Renee Agudo, Nacionalista Party official candidate, filed independent petitions with COMELEC, contesting the pro­clamation of Rufino Antonio, Jr. by the Provincial Board of Canvassers on the basis of terrorism practiced by armed men brought to Batanes by can­didate Antonio and strategically distributed in all towns, who destroyed communication facilities and blocked airport landings, thereby effectively isolating the province; and that on election day these armed men had attacked the precincts of Itbayat, Uyugan, Ivana, Mahatao and Sabtang (except Precinct 4 of the latter), driven away the voters filled in the unused ballots with the name of Antonio, destroyed the ballots of those voters who had previously managed to vote, prepared the election returns without counting the votes, and thereafter coerced and intimidated the boards of inspectors of the precincts to sign the same at gunpoint.  Both petitioners prayed that the proclamation of Rufino Antonio, Jr. by the Board of Canvassers be annulled and set aside, and that the election returns in all precincts in the towns of Batanes, except Basco and Precinct No. 4 of Sabtang, be declared null and void.  But while can­didate Abed also prayed that the canvassing board be directed to make another canvass on the basis of election returns from Precinct 4 of Sabtang and the nine (9) precincts of Basco and thereafter proclaim the winner, candidate Agudo, in her turn, asked that the returns from Sabtang, Precinct 4, and Basco be declared not expressive of the will of the ma­jority, since they represent only 28% of the registered voters of Batanes, and that the holding of a special election be recommended to the Pre­sident of the Philippines.

Respondent (petitioner herein) Rufino Antonio; Jr. answered both petitions traversing the allegations thereof, and pleading the regularity and freedom of the election held, and, by way of special defenses, urged (1) lack of jurisdiction of COMELEC to determine questions involving election returns regarding members of the House of Representatives; (2) estoppel of Jorge Abad to maintain the pro­ceedings because he had filed a protest against Antonio in the House Electoral Tribunal; (3) that COMELEC had no power to annul the proclamation or suspend its effects; (4) that both Abed and Agudo waived their rights to contest the proclamations or are estopped from asserting it in view of their failure to attend the canvass and impugn therein the validity of the questioned returns; and (5) lack of power of the COMELEC to annul the election or declare a failure to elect.

At the initial hearing on 5 December 1969, the COMELEC issued a resolution suspending the effects of the proclamation of Antonio pending final termination of the case and rejected the motions to dismiss filed by Antonio and the Provincial Board of Canvassers based on grounds substantially identical to the special defenses pleaded in Antonio's answers.

Thereafter, COMELEC proceeded to take evidence, summoning and hearing inter alia the chairmen of the boards of inspectors in the questioned precincts.  Thereafter, it rendered a unanimous Resolution finding the factual claims of terrorism made by petitioners (respondents herein) Abad and Agudo to have been substantiated by proof.  Overruling Antonio's special defenses, the COMELEC voided the returns of the questioned precincts and set aside his proclamation based thereon.  The majority of the Commission (Chairman Ferrer and member Patajo) further resolved to order the Provincial Board of Canvassers to reconvene and recanvass the uncontested returns of Basco and Precinct 4 of Sabtang, and proclaim the winner.  Commissioner Miraflor, however, was, of the opinion that (as contended by candidate Agudo) there was a failure of election that should be certified to the House of Representatives.

 Rufino Antonio, Jr. then resorted to this Court, as stated heretofore, urging practically the same special defenses pleaded by him before the COMELEC and praying that the COMELEC resolution be set aside, and that the House Electoral Tribunal be declared with exclusive jurisdiction to hear and decide the issues raised by petitioners below.

WE gave the petition due course and required respondents Commis­sion on Elections, Jorge Abad, Renee Agudo and the Provincial Board of Canvassers to answer Antonio's petition.  And upon his motion, a writ of preliminary injunction was issued to stop the proclamation during the pendency of these proceedings.  Thereafter, the case was heard, argued and submitted for decision.

The petitioner, Rufino Antonio, Jr., makes no attempt to question the findings of the COMELEC to the effect that the returns from the 21 questioned precincts were prepared under systematic threats and intimidation practiced by heavily armed men upon the members of the respective boards of inspectors.  Said the Commission in its resolution:

"It would appear quite clear to the Com­mission that what transpired inside the polling place in Itbayat, Uyugan, Ivana, Mahatao and Sabtang, except Precinct 4 on election day, particularly in regard to the preparation of the returns in these precincts through the intervention or upon the dictation of armed goons, was the culmination of an operation which had for Its, objective the election of one of the congres­sional candidates.   The destruction of the com­munication facilities of RCPI and of the Bureau of Telecommunication in Basco, as well as of the radio phone of the Weather Bureau Station; the immobilization of practically all government and private motor vehicles, including those belonging to the Bureau of Public Highways and Bureau of Public Works, the Provincial Governor, the Superintendent of Schools and the Provincial Hospital ambulance; the presence of a private plane squatting across the runway of the Basco Airport since November 8, 1969; the unexplained presence of unidentified ships in the waters of Batanes; the mysterious trips of a helicopter; the frisking of all arrivals by PAL in search of arms; the checkpoints manned by PC Special Forces whose presence in Batanas had not been re­ported to the Commission on Elections in Manila, and as a matter of fact, the Commis­sion had grounded the use of these PC Special Forces in Cagayan and Marinduque and in all other places where their presence had been re­ported to the Commission before election and on election day; checkpoints which prevented the free movement of not only the government officials including the Governor but also of the Bishop of Batanes who headed the CNEA in said province; the precision in movements of these armed goons who swooped down upon the helpless members of the board of inspectors, and drove away the voters awaiting for their turn to vote, destroying or burning the ballots validly cast and filling in the unused ballots with the name of their candidate - all of these occur­rences and happenings formed part of a common pattern joined together like pieces of a jigsaw puzzle which when seen separately are meaningless and incomprehensible but put together reveal a picture so awesome and appalling, clearly pointing to the rape of democra­cy in Batanes on November 11, 1969.  (Appendix "Y" of Antonio's Petition, pp. 31-33)."

Petitioner Antonio actually rests his case on the arguments that all the questioned returns appear clean and regular on their face; that the Board of Provincial Canvassers was regularly constituted; that the validity of the questioned returns was not raised at any time during, the canvass, which resulted in petitioner's proclamation.  From these premises, he avers first of all that only the House Electoral Tribunal, and not the COMELEC, can review and set aside such canvass and proclamation.  Yet he admits that under the repeated rulings of this Court the COMELEC can set aside an illegal proclamation such as one based on incomplete or tampered returns (Petitioner's memorandum, page 3).  Over and over, in fact, has this Court held that it is the duty of canvassers to be satisfied of the genuineness of the returns, that the papers presented to them are not forged or spurious.^[1] If the COMELEC in the exercise of its duties under Section 3 of the Revised Election Code, can require Boards of Canvassers to consider only genuine and authentic, not falsified, returns, it can logically require such boards to exclude from the canvass any returns that were actually the product of coercion, even if they be clean in their face.  Direct authority to this effect is our decision in Pacts vs. COMELEC, L-29026, 28 September 1968, 25 SCRA, page 377, where we specifically ruled as follows:

"We must now say that an election return prepared at the point of a gun is no return at all; it is not one notch above a falsified or spurious return.  Comelec was correct in ruling that there was no valid return for the office of Mayor at Precinct 22 and that no vote should be counted for said precinct in the canvass of votes for Mayor."

On the strength of Angara vs. Electoral Commission (1936) 63 Phil. 139, petitioner Antonio urges that the Electoral Tribunal of the House has, under the Constitution, exclusive jurisdiction to pass upon and determine the election, returns and qualifications of the members of the House of Representatives, and that such grant of power is intended to be as complete and unimpaired as if it had remained originally in the legislature; "and this is as effective a restriction upon the legislative power as an express prohibition in the Constitution" (cas. cit., page 176).  But the Angara case did not involve any conflict between the Com­mission on Elections and the Electoral Tribunals, neither of which existed when that decision was rendered; and the fact that the powers of the Electoral Commission (now replaced by the House and Senate Electoral Tribunals) restrict and exclude the legislative power in matters concerning the election, returns and qualifications of the members of the House in election contests, does not mean that the COMELEC may not now exercise its constitutional power to "enforce and administer all laws relative to the conduct of elections" , and, in the course thereof, to require that canvassers base their proclamations only on genuine, authentic and untampered returns, and annul any pro­clamations departing from this rule.

"'The purpose of the Revised Election Code is to protect the integrity of the elections and to suppress all evils that may vitiate its purity and defeat the will of the voters.  The purity of the elections is one of the most fundamental re­quisites of popular government.  The Commission on Elections, by constitutional mandate, must do everything in its power to secure a fair and honest canvass of the votes cast in the elections.  In the performance of its duties, the Commission must be given a consi­derable latitude in adopting means and methods that will insure the accomplishment of the great objec­tive for which it was created -- to promote free orderly and honest elections.  The choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with.  Technicalities, which are not conducive to free, orderly and honest elections, but on the contrary may defeat the will of the sovereign people as expressed by their votes, should not be allowed to hamper the Commission on Elections in the performance of its duties.'" CAUTON V. COMELEC L-15467, April 27, 1967 10 SCRA 911.

The true measure of the jurisdiction of the House and Senate Electoral Tribunals was set in our decision in Vera vs. Avelino, 77 Phil. 192, 200, to the effect that:

"The Convention, however, bent on circums­cribing the latter's authority to contest' relating to the election, etc. altered the draft.  The Convention did not intend to give it all the functions of the Assembly on the subject election and qualifica­tions of its members.  The distinction is not without a difference.  'As used in constitutional provisions', election contest 'relates only to statutory contests in which the contestant seeks not only to oust the intruder, but also to have himself inducted into office. ' (Laurel on Elections, Second Edi­tion, p. 250; 20 C.J., 58.) "

In harmony with this principle, Section 182 of the Election Code provides that "in contests under their respective jurisdictions the Electoral tribunals of the Senate and the House of Representatives shall have and exercise the same powers which the law confers upon the Courts …", it being well-known that the exercise of judicial powers are called for only upon the filing of the corresponding petition.  Until a regular protest or contest is filed, therefore, the jurisdiction of the Electoral Tribunals does not come into play in order to exclude the authority of the COMELEC.

Thus, the power of the COMELEC to set aside returns that are falsi­fied or are not authentic and genuine and to order the same excluded from a canvass is distinct and separate from the authority inherent in the Electoral Tribunals of the House or the Senate, in the course of an electoral protest, to set aside such returns whenever the statements of votes cast contained therein do not tally with the valid votes enclosed within the ballot boxes themselves.  No conflict of jurisdiction can arise since the powers of the COMELEC and the Electoral Tribunals are exercised on dif­ferent occasions and for different purposes.  The COMELEC is not concerned with the veracity of the returns, but with their genuineness and regularity; and it is self-evident that a return accomplished by the election inspectors under threats and coercion by armed men is in law no return at all that the canvassers may take into account.^[2] As a corollary, the COMELEC can sat aside an improper canvass, as well as the resulting proclamation, and this Court has repeatedly so ruled^[3].

"'These cases, however, are not to be read as throwing overboard Comelec's authority to inquire into whether or not a proclamation is null and void.  For, these cases merely emphasize the rule that where a proclamation is validly made ERRORS in the proclamation main only be raised in a full-dress election protest.

"' The ratiocination advanced by petitioner fails to take stock of the fact that where a proclamation is null and void, that proclamation is no proclama­tion at all.  This is axiomatic.  To be remembered is Mutuc v. Commission on Elections, supra, citing Demafiles vs. Commission on Elections, supra.  Our ruling there is this: ' It is indeed true that after proclamation the usual remedy of any party aggrieved in an election is to be found in an election protest.  But that is so only on the assumption that there has been a valid proclamation.  Where as in this case at bar the proclamation itself is illegal the assumption of office cannot in any way affect the basic issues. ' (Ibid) "

It may be that the canvassers were not, at the time of the canvass, aware that the returns were coerced; that may relieve them from liability but does not validate such returns, nor prevent the COMELEC from sub­sequently voiding them and ordering a new canvass whenever said body is satisfied of the compulsive character of the returns.

It is urged that the respondents Abad and Agudo are in estoppel from questioning these coerced returns because of their failure to attend the canvassing and there to object to them.  We find this contention untena­ble in view of the circumstances then prevailing.  Not only was Abad sick at the time, but no adequate term was given for him to attend.  In truth, the canvass was so precipitately conducted [starting at eight o'clock in the evening of the day following the election (12 November 1969) and completed at 3 o'clock of the following afternoon] that three of the de jure members of the Provincial Board of Canvassers had, like­wise, no opportunity to be present, and their substitutes were appointed without even attempting to secure from the COMELEC an order for their substitution, as required by section 159 of the Election Code.  A reading of the minutes of the canvass proceedings leaves no doubt that the short notices (barely an hour) given to Vice-Governor Gato and two members of the Provincial Board were expressly designed to prevent their attend­ance, and this maneuver would suffice to annul the canvass (Pacts vs. COMELEC, ante).

In addition, some of the returns considered by the canvassers were plainly irregular on their face.  Thus, for example, the returns for Precinct 1 of Sabtang showed only the signatures of two inspectors (See the photograph, Abad's Answer, Annex "D"); that of Precinct 2 of Sabtang (do, Annex "E") showed no count of the valid and spoiled ballots, nor did it show any votes for Senators; that of Precinct II -A of Itbayat contained an erasure by cancellation and a correction without initials (Annex "F"), and the same is true of the return for Precinct 1 of Ivana, where the votes of Jose W. Diokno for senator (224) appear can­celled without initials or explanation (Annex "J").  In the return for Precinct 2 of Mahatao (Annex"H"), an equally patent anomaly appears: the votes for candidates Abad (Jorge), Abad (Senen), Agudo and Villalva are set down as "One" in letters and eleven (11) in figures.  Yet, despite such blatant anomalies, all these returns were improperly considered regular by the canvassers.  Hitherto, in Solidum vs. Macalalag, L-28666, 20 May 1969, 28 SCRA 200; Purisima vs. Salanga, L-22335, 31 December 1965, 1965, 15 SCRA 704, and Javier vs. Comelec, L-22248, 30 January 1965, 13 SCRA 156, we have ruled that failure to investigate and to disregard patent irregularities, such as these, authorizes the COMELEC to annul the canvass and resulting proclamation.

To cap it all, there is the testimony of Governor Agudo, himself a member of the Board of Canvassers, that in Batanes "there was terror­ism before, during and after the elections".

All these circumstances, precipitate canvassing, terrorism, lack of sufficient notice to members of the Board, and disregard of manifest irregularities on the face of the questioned returns, build up to prove that the alleged canvassing was mere ceremony that was predetermined and manipulated to result in nothing but the hurried proclamation of peti­tioner Antonio as Congressman-elect.  They also establish convincingly that whatever objections to the returns could have been interposed by the respondent candidates, had they been given opportunity to do so, would have been useless, and would not have been considered nor varied the result.  Wherefore, the failure of respondents to interpose seasonable objection at the canvassing aforesaid could not have amounted to either estoppel or waiver of their rights to object to the questioned returns.

Finally, Antonio's argument that Abad waived the remedy sought from the COMELEC by filing an unconditional protest with the House Electoral Tribunal on 28 November need not give pause: for the Electoral Tribunal itself admitted Abad's amended protest, recognized that the protest was filed ex abundance cautela and, upon Abad's motion, held further proceed­ings in abeyance "until after the Commission on Elections has resolved the matter or matters now pending before it".  The House Electoral Tribunal, in other words, recognized the jurisdiction of the COMELEC, and beyond that this Tribunal is not called upon to go.  Anyway, a cautelary protest does not deprive the COMELEC of its jurisdiction.^[4]

Nor is petitioner's case bolstered by his taking an oath of office on 30 November 1969.  "Where the proclamation itself is illegal, the assump­tion of office can not in any way affect the basic issues" (Mutuc vs. COMELEC, G. R. L-28517, 21 February 1968, 22 SCRA 662).

In case G. R. No. L-31609, candidate Renee Agudo appealed from the COMELEC resolution in so far as the same ordered the Provincial Board of Canvassers to reconvene and canvass the returns from those precincts not affected by terrorism and to proclaim the winner on the basis of such returns.  Appellant Agudo takes the position that, since the votes recorded (1,363) for all the precincts of Basco and precinct 4 of Sabtang, and reported for the only precincts not questioned, represent only 28% of the total registered voters, the proper course of the COMELEC is to certify to a failure of election in order that a special election may be called.

Implicit in the stand taken by respondent Agudo is the assumption that for a candidate to be elected, he should receive the votes of a majority of the registered electors.  This thesis finds no support in our election laws.  There is no provision in our election statutes declaring that a majority of the registered voters must cast their votes, or that a winning candidate must receive a majority of the votes of the registered electors, or a majority of the votes cast.  The only mention in the Election Code of the number of votes required of a congressional candidate is in section 165, providing that if from the canvass "it should appear that 2 or more have received the largest number of votes", then the canvassers shall draw lots and "shall proclaim as elected that candidate who may be favored by luck, and the candidate so proclaimed shall have the right to assume office in the same manner as if he had been elected by a plurality vote".  A plurality of valid votes, therefore, is all that is required in order that a candidate may win the election, even if he obtains less than an actual majority.

It is, likewise, our view that the certification prayed for by res­pondent Agudo is not within the powers of the COMELEC to make.  It is well to recall here that the Commission is constitutionally charged with the "enforcement and administration of all laws relative to the conduct of the elections" (Article X, section 2, Constitution).  The Cons­titution also empowers the COMELEC to "decide, save those involving the right to vote, all administrative questions affecting elections", all with a view to ensuring "free, orderly and honest elections".  We seriously doubt that a declaration of a failure to elect, notwithstanding the fact that 1,363 valid votes have been cast and counted, can be considered an "administrative question" that the COMELEC has power to decide.  Such a certification has no bearing on the conduct of the elections or the elec­toral process, but concerns the results thereof.  It would bring about the invalidation or nullification of the votes validly cast in the uncontested precincts, effectively disenfranchising the voters who cast them; and this Court has already ruled that "the power to decide election contests" (which is avowedly not lodged in the COMELEC)"includes the power to determine the validity or nullity of the votes questioned by either of the contestants."^[5]

Be that as it may, all doubts on the question can be set at rest by resorting to the provisions of Section 177 of the Election Code.  It pres­cribes that it is for the Court taking cognizance of an election protest to "declare who among the parties had been elected, or, in the proper case that none of them has been legally elected".  Since the Electoral Tribunals of Congress, pursuant to Section 182 of the Election Code, "shall have and exercise the same powers which the law confers upon the Courts, it becomes plain that the declaration of a failure to elect must, in the case, be sought from the Electoral Tribunal of the House and in the appropriate election contest, because such failure can only mean that none of the competing candidates has been legally elected.  To give way to a protest wherein such declaration can be made, a winner must be proclaimed.

The Justices are unanimous in the conclusion that the procla­mation of petitioner Rufino S. Antonio, Jr. was correctly and properly annulled and set aside by the Commission on Elections in view of the large scale and unprecedented terrorism practiced by armed goons in favor of said candidate, and, therefore, the action of the Commission must be; and is, affirmed in this respect.  The justices are, however, evenly divided on the issue whether the COMELEC should have ordered, as it did, a recanvass and proclamation on the basis of the returns for Precincts 1, 1A, 2, 3, 3A, 4, 5, 6 and 7 of Basco and No. 4 of Sabtang.  Five justices, including the writer of this opinion, believe that such a proclamation is a necessary precedent to a protest in the Electoral Tribunal of the House, wherein the question of failure to elect may be resolved.  Five other Justices dissent, believing that the proclamation ordered by COMELEC is improper under the circumstances, and that the COMELEC should confine itself to declaring a failure of election and to cer­tifying the matter to the House Electoral Tribunal or, as proposed by Mr. Justice Enrique Fernando, to the House of Representatives direct.  Under the Rules of Court (Section 11, Rule 56), a rehearing on this second point must be had.

WHEREFORE, the petition of candidate Rufino S. Antonio is hereby dismissed, and the order of COMELEC invalidating his proclamation is affirmed.  But the petition of candidate Agudo that COMELEC certify a failure of election and recommend the holding of a special election, as well as the petition of candidate Abad that a proclamation be ordered made on the basis of the valid returns, are ordered set for reargument and new hearing as soon as practicable.

SO ORDERED.

Dizon, Makalintal, and Zaldivar, JJ., concur.
Concepcion, C.J., voted in favor of this opinion.
Teehankee, J., files a separate opinion
Ruiz Castro and Villamor, JJ., concur in the separate opinion of Justice Teehankee.
Reyes, JBL., Acting C. J., certifies that Mr. Justice Antonio P. Barredo voted in favor of Justice Teehankee's opinion.
Fernando, J., see concurring and dissenting opinion.

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^[1] Demafiles vs. Commission on Elections, L-28396, 29 December 1967; 21 SCRA 1462, 1466; Ong vs. Commission on Elections, 29 January 1968, 22 SCRA 241, 249; Espino vs. Zaldivar, L-22325, 11 December 1967, 21 SCRA, 1215; Cauton vs. Comelec, L-25467, 27 April 1967, 19 SCRA 911.

^[2] Pacis vs. COMELEC, supra.

^[3] Aguam vs. COMELEC, L-28955, 28 May 1968, 23 SCRA 889-890, and cases cited therein; Mutuc vs. COMELEC, L-28517, 21 Feb. 1968, 22 SCRA 669.

^[4] Pacis vs. COMELEC, ante.

^[5] Nacionalista Party vs. Commission on Elections, 85 Phil. 149, 156; Abes vs. COMELEC, L-28348, 15 December 1967, 21 SCRA, 1252, and cases therein cited.

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