THE Commission on Elections (Comelec) First Division dismissed the electoral protest filed by former Silay City mayor Carlo Gamban against Mayor Jose Montelibano.
The order, dated January 28, 2013, was signed by presiding commissioner Rene Sarmiento and commissioners Armando Velasco and Christian Robert Lim.
The electoral protest was filed by Gamban before the Electoral Contests Adjudication Department, contesting the proclamation of Montelibano, the proclaimed mayor of Silay City, on the basis of the results for the contested position as appearing in the Certificate of Canvass of Votes and Proclamation of the winning candidate duly signed by members of the City Board of Canvassers for Silay City.
Montelibano garnered in Silay City a total vote of 18,413 as against Gamban's votes of 18,403.
Montelibano won by only 10 votes over Gamban.
The Comelec, in its decision, said: "Upon consideration of the arguments presented by the opposing parties and the applicable cases already decided by the Supreme Court, we rule to dismiss outright the instant protest for having been belatedly instituted. Protestant cannot take refuge behind Section 248 of the Omnibus Election Code because the annulment of proclamation case he has earlier filed against Montelibano was not the proper remedy to redress whatever alleged wrong protestant claimed to have been committed by the protestee."
The commission en banc agreed with the observation of the First Division that the petitioner might have a valid cause of action, “only that he chose the wrong remedy.”
“Indeed the commission does not close its eyes to the allegations of irregularities in clustered precinct No. 85. However, there is a proper action where these allegations can be best ventilated and addressed,” said the Comelec.
It added that it has to follow the proper procedure in taking cognizance and resolving the allegations, lest it be accused of arbitrariness.
“In view of the foregoing pronouncements, there is no other recourse but to apply the ruling of the Supreme Court in Abayon vs Comelec and Daza, on all fours with the instant case. Considering that the protest was filed on January 6, 2011 while the protestee was proclaimed on May 11, 2010. The instant protest must be dismissed for being filed out of time," it added.
Gamban is running anew against Montelibano for mayor in the May 13 elections. (TDE)