Abolais R. Omar, an Independent candidate (p. 1, Rollo), was proclaimed on February 4, 1980 by the municipal board of canvassers as the duly elected mayor of Madalum, Lanao del Sur. He obtained 775 votes, winning by 104 votes over his opponent, Hadji Yasin B. Alapa, the incumbent mayor and the candidate of the Kilusan ng Bagong Lipunan (KBL).

On the following day, February 5, Alapa, in an urgent petition, asked the Commission on Elections to set aside that proclamation on the ground that frauds and irregularities were committed in voting centers Nos. 3 and 5 (Barangays Linuk and Sugod). Alapa alleged that there was massive substitution of voters which was tolerated by the citizens election committees. The ballots were filled up by persons other than the voters themselves so that the signatures and thumbmarks affixed to the voting record and stubs of the ballots were not those of the registered voters (Annex B of Petition; Petition in Election Case No. Pre-Proclamation-272).

Alapa further alleged that flying voters and minors were allowed to vote in voting centers Nos. 3 and 5. Affidavits supporting that allegation were attached to his petition. He asked that the ballot boxes and the election returns and paraphernalia be impounded and that fingerprint and handwriting experts should examine the voting records. He averred that he would win by a comfortable margin if the votes in the two voting centers were nullified and excluded.

He prayed that after the annulment of the votes in the two voting centers the election returns be recanvassed.

Acting on that urgent petition, the Comelec in its resolution of February 12 suspended the effects of Omar's proclamation and required him to answer the petition.

In the meantime or on February 14, Alapa filed an election protest ad cautelam in the Court of First Instance of Lanao del Sur.

Omar in his answer to Alapa's petition of February 5, denied the alleged frauds and irregularities. He supported that denial with affidavits. He contended that Alapa's remedy was in the election protest that he had already filed. Omar prayed that the petition be dismissed and that the order suspending the effects of his proclamation be lifted.

The Comelec in its resolution of March 1, 1980 dismissed Alapa's petition. It held that the ground relied upon by Alapa "is a proper ground for an electoral protest".

Before being apprised of that dismissal resolution, or on March 5, 1980, Alapa filed a motion to hold in abeyance the resolution on his petition. He submitted newly discovered evidence among which was that Omar was certified two times under two names, "Omar Abolais C" (Nacionalista) and "Omar Raquib" (Independent). Alapa submitted a joint affidavit of two voters attesting to Omar's use for voting purposes of two names under two lineups.

Omar opposed the motion. After hearing, the Comelec in a telegram dated April 17, 1980 (1) informed Alapa that the implementation of its March 1 resolution lifting the suspension of the effects of Omar's proclamation was held in abeyance  and (2) directed Alapa to remain as mayor in a holdover capacity as likewise directed by the Minister of Local Government in his letter of March 18, 1980.

In a manifestation dated April 23, 1980, Omar asked the Comelec to revoke its telegraphic order. The Comelec did not revoke it, thus continuing in force its resolution of February 12, 1980 suspending the effects of Omar's proclamation as mayor.

On May 15, 1980, the Comelec issued a resolution, directing experts of its Fingerprints Division and the handwriting expert of the National Bureau of Investigation to make a comparison and examination of the thumbprints and signatures appearing in the voting records of January 30, 1980 and those appearing in the permanent Books of Voters for the two voting centers so that it could have a basis for affirming or annulling Omar's proclamation or determining whether Alapa was elected mayor.

Not satisfied with that resolution, Omar, on June 2, 1980, filed the instant special civil action of certiorari to set aside the said Comelec resolution of May 15, 1980.

The issue is whether the Comelec committed a grave abuse of discretion, amounting to lack of jurisdiction, in requiring examination and comparison, by experts, of the thumbmarks and signatures in the questioned voting records.

We hold that the Comelec did not commit any grave abuse of discretion in requiring experts to examine the fingerprints and signatures on the questioned voting records to determine whether substitute voters or flying voters cast their votes in voting centers Nos. 3 and 5.

That proceeding would be a continuation of the pre-proclamation controversy which started on election day  when Alapa asked that the voting in voting centers Nos. 3 and 5 be stopped because three nieces of Omar and a certain Romero Nasser voted therein although they were not registered voters in those precincts. And during the canvass, Alapa asked for the exclusion of the returns for voting centers Nos. 3 and 5.

The Comelec opined that the election registrar should have recommended the annulment of the election in the said voting centers and the holding of a special election (Annex O, p. 100, Rollo).

It cannot be said that the Comelec acted in a capricious, despotic and whimsical manner in directing that experts should examine the questioned thumbmarks and signatures. It acted within its prerogatives in adopting that procedure in a pre-proclamation controversy. (See Diaz, Sr. vs. Commission on Elections, L-33378, November 29, 1971, 42 SCRA 426; Estaniel vs. Commission on Elections, L-33453, November 29, 1971, 42 SCRA 436.)

The Comelec is "the sole judge of all pre-proclamation controversies" and, after hearing, it may annul any proclamation if it is convinced that there are discrepancies in the election returns (Sec. 175, 1978 Election Code).

In the instant case, the existence of discrepancies in the election returns for voting centers Nos. 3 and 5 is probable because of the prima facie finding that there was substitute voting in those centers.

As observed by Justice Barredo in Aratuc vs. Commission on Elections, L-49705-09, February 8, 1979, 88 SCRA 251, this Court's power to review a decision, ruling or order of the Comelec under the 1973 Constitution is narrower in scope than its power under the 1935 Constitution.

Under the 1935 Constitution, this Court exercised appellate jurisdiction to review any decision, ruling or order of the Comelec. Under the present Constitution, any decision, ruling or order of the Comelec can be assailed in this Court only by means of the special civil action of certiorari.

It should be stressed that the decisions orders or rulings of the Comelec in pre-proclamation controversies, of which it is the sole judge, are final and executory (Sec. 175, 1978 Election Code).

In factual matters, the Comelec is "en mejores condiciones que ningun otro organismo del Estado para conocer aquellos que tiendan a asegurar la pureza del sufragio, en que radica la salud de las democracias. Sus conclusiones, por tanto, relativas a los hechos y a las cuestiones de equidad no deben ser modificadas, a menos que en autos aparezca que abuso gravemente de sus facultades" (Horrilleno, J., in Vinzons vs. Commission on Elections, 73 Phil. 247, 251-2).

Justice Jose Abad Santos said that a "due regard to the independent character of the Commission (Comelec), as ordained in the Constitution, requires that the power of this Court to review the acts of that body should, as a general proposition, be used sparingly but firmly in appropriate cases".

That is the proper norm of conduct because "there are no ready-made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of the laws relative to the conduct of elections" "we must not by any excessive zeal take away from the Commission the initiative which by constitutional and legal mandates properly belongs to it." (Sumulong vs. Commission on Elections, 73 Phil. 288, 295-6.)

The Comelec as an independent constitutional body "is intended to play a distinct and important part in our scheme of government. In the discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization."

"The Commission may err, so may this Court also. It should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was created - free, orderly and honest elections."

"We may not agree fully with its choice of means but unless these are clearly illegal or constitute gross abuse of discretion, this Court should not interfere."

"Politics is a practical matter, and political questions must be dealt with realistically - not from the standpoint of theory. The Commission, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions." (Sumulong vs. Commission on Elections, supra, pp. 294-295 and Lava vs. Commission on Elections, 73 Phil. 390, 396-7.)

WHEREFORE, the petition is dismissed. The restraining order heretofore issued is lifted. Costs against the petitioner.

SO ORDERED.

Barredo, Makasiar, Concepcion, Jr., Fernandez, Guerrero, and De Castro, JJ., concur.

Fernando, C.J., concurs in the result as set forth in a brief separate opinion.

Teehankee, J., dissents in a separate opinion.

Abad Santos, J., see dissenting opinion.

Melencio-Herrera, J., joins JJ. Abad Santos, and Teehankee in their dissenting opinion.

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CONCURRING IN THE RESULT AND DISSENTING FROM THE OPINION OF THE COURT

FERNANDO, C.J.:

The dismissal of this petition is a foregone conclusion, a majority of my brethren being clearly of that view. So be it. I would predicate my concurrence in the result on the expectation that the failure of petitioner to set aside the challenged resolution should not stand in the way of the prompt termination of the matter now pending before respondent Commission on Elections.

Had my appraisal of the case prevailed, petitioner would now be entitled to sit subject to his election being contested in an election protest. This is not to deny that from the basic premise of Justice Aquino, his opinion finds support from our previous decisions.^[1] Nor am I in disagreement with the respect accorded Sumulong v. Commission on Elections,^[2]  which rightfully falls under the category of a landmark decision. The policy therein embodied as to the approach certainly calls for application in appropriate cases. With all due respect, I submit this is not one of them.

It is my belief that our holding in Aguinaldo v. Commission on Elections^[3]  is controlling. Thus: "Since Venezuela v. Commission on Elections, this Court invariably adhered to the principle that after the holding of the January 30, 1980 election, and a proclamation thereafter made, a petition to disqualify a candidate based on a change of political party affiliation within six months immediately preceding or following an election, filed with this Court after January 30, 1980, arising from a pre-proclamation controversy, should be dismissed without prejudice to such ground being passed upon in a proper election protest or quo warranto  proceeding. Where, however, such constitutional provision had been seasonably invoked prior to that date with the Commission on Elections having acted on it and the matter then elevated to this Court before such election, the issue thus presented should be resolved."^[4]

As this petition was filed only on June 2, 1980, assailing a resolution of the Commission of May 15, 1980, it is my submission that it falls within the ambit of the Aguinaldo decision. The Venezuela case therein referred to was promulgated on July 25, 1980. Such a policy was adopted to assure that pre-proclamation controversies be considered terminated so that whoever is proclaimed may discharge the functions of the office without prejudice to the filing of either an election protest or a quo warranto petition.

I am likewise prepared to concede that while the Aguinaldo principle ordinarily governs our appraisal of petitions, there could be exceptions. Evidently the majority of my brethren acted on such a view. While recognizing that consistency is not an inexorable requirement, I am bothered by the failure of the Commission on Elections to explain why its well-reasoned resolution of March 1, 1980, resulting in petitioner having thereafter assumed office, was reconsidered and set aside in the absence of any new evidence on May 15, 1980.

To repeat, notwithstanding the able opinion of Justice Aquino, I feel that the application of the Aguinaldo ruling calls for my withholding my assent and limiting my concurrence to the result for lack of necessary votes to grant the petition.

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^[1] Cf. Vinzonz v. Commission on Elections, 73 Phil. 247 (1941); Sumulong v. Commission on Elections, 73 Phil. 288 (1941); Lava v. Commission on Elections, 73 Phil. 390 (1941); Diaz v. Commission on Elections, L-33378, November 29, 1971, 42 SCRA 426; Estaniel v. Commission on Elections, L-33453, November 29, 1971, 42 SCRA 436; Aratuc v. Commission on Elections, L-49705-09, February 8, 1979, 88 SCRA 251.

^[2] 73 Phil. 288 (1941).

^[3] G.R. No. 53953, January 5, 1981.

^[4] Ibid, 2.

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