EN BANC

[G.R. No. 122391. August 7, 1997]

FELIPE L. LAODENIO, petitioner, vs. COMMISSION ON ELECTIONS, THE MUNICIPAL
BOARD OF CANVASSERS OF MAPANAS, NORTHERN SAMAR and ROGELIO
LONGCOP, respondents.
D E C I S I O N
BELLOSILLO, J.:
FELIPE L. LAODENIO, petitioner, and ROGELIO LONGCOP, respondent, were
candidates for the position of Mayor of Mapanas, Northern Samar, during the 8 May
1995 elections. On 15 May 1995 Longcop was proclaimed winner by the Municipal
Board of Canvassers.
On 20 May 1995 Laodenio filed a petition with respondent Commission on
Elections (COMELEC) to annul the proclamation of Longcop and to declare illegal the
constitution of the Municipal Board of Canvassers as well as its proceedings. He
alleged in his petition that -
During the canvass, respondent board of canvassers adjourned repeatedly starting May
9, 1995, after the poll clerk of precinct no. 7-A testified before the Board that the
election returns for the said precinct was tampered with and falsified to increase the
total votes cast in favor of respondent Longcop from 88 to 188.
On 10 May 1995, the Board resumed its canvass but it adjourned again at past 5:00
o'clock in the afternoon as it has (sic) not yet decided on what to do with the election
returns for precinct (sic) nos. 7-A and 5-A. When it adjourned on May 10, 1995 it
announced that it will (sic) only resume canvass on 12 May 1995 at the capital town of
Catarman, Northern Samar. The Board however reconvened on 12 May 1995 in
Mapanas and proceeded with the canvass. The respondent board thereafter adjourned
and surreptitiously reconvened on 15 May 1995, with a new chairman who was
allegedly appointed by the Provincial Election Supervisor.
When the election returns from Precinct (sic) Nos. 5-A and 7-A were (sic) about to be
canvassed, petitioner manifested his oral objections thereto and likewise submitted
his written objections on the same day, 12 May 1995.
The respondent board however did not give the petitioner opportunity to file an
appeal (from?) its decision to proceed with the canvass of the election returns from
precinct (sic) nos. 7-A and 5-A.
The respondent board of canvassers was informed by Elie Acquiat (poll clerk) that the
election returns from precinct no. 7-A was tampered, and the votes for the
respondent Longcop was increased from 88 to 188. Similarly, the BEI Chairman of
Precinct 5-A Arnulfo Nueva and the third member Dolor Rowela informed the board of
canvassers that the election returns from precinct 5-A was tampered by increasing the
votes for the respondent Longcop from 117 to 173. With the testimony of those
witnesses, the board should have proceeded in accordance with Section 235 of the
Omnibus Election Code but the board disregarded the clear mandate of the law and
closed its eyes to the overwhelming evidence of falsification and lent its hand to the
consummation by canvassing the falsified election returns.
[1]

On 25 May 1995 petitioner filed an election protest before the Regional Trial
Court.
On 28 August 1995 respondent COMELEC dismissed the petition of Laodenio for
lack of merit.
[2]
It was of the view that the adjournments were justified and were not
improperly prolonged as claimed by petitioner; he was in fact deemed to have
acquiesced to the new composition of the Municipal Board of Canvassers when he
actively participated in the proceedings therein; there was no showing that he
manifested on time his intent to appeal the rulings of the Board, neither was there
any proof that he appealed therefrom; and, on the authority of Padilla v. Commission
on Elections
[3]
the pre-proclamation controversy was no longer viable since Longcop
had already been proclaimed and had assumed office. On 23 October 1995 the
motion for reconsideration was denied.
[4]

Petitioner raises these issues: (1) The direct filing of a petition with COMELEC to
contest the illegal conduct of the Board of Canvassers is allowed under Rule 27, Sec.
4, of the COMELEC Rules of Procedure; and, (2) The pre-proclamation controversy was
not rendered moot and academic by the filing of an ordinary election protest.
Laodenio claims that a petition may be filed directly with COMELEC pursuant to
Rule 27, Sec. 4, of the COMELEC Rules of Procedure when, as in this case, the issue
involves the illegal composition of the Board of Canvassers or the canvassing was a
ceremony that was pre-determined and manipulated to result in nothing but a sham
proceeding and there was disregard of manifest irregularities in the questioned
returns. In particular, petitioner argues that the Board was illegally constituted on 15
May 1995 since the new Chairman was appointed merely by the Provincial Election
Supervisor and not by respondent COMELEC, in clear contravention of Sec. 10 of
COMELEC Resolution No. 2756. Also, the Board proceeded illegally when it canvassed
tampered election returns unmindful of Sec. 235 of the Omnibus Election Code which
refers to election returns that appear to be tampered with or falsified.
This argument is devoid of merit. Apparently, it emanates from a
misapprehension of the applicability of certain election laws. Sec. 17 of R.A.
7166
[5]
provides -
Sec. 17. Pre-proclamation Controversies: How Commenced. - Questions affecting the
composition or proceedings of the board of canvassers may be initiated in the board
or directly with the Commission. However, matters raised under Sections 233, 234,
235 and 236 of the Omnibus Election Code in relation to the preparation,
transmission, receipt, custody and appreciation of the election returns, and the
certificates of canvass shall be brought in the first instance before the board of
canvassers only.
As evidenced by the Minutes of the Board, petitioner indeed raised the matter of
illegal composition of the Board at the first instance before said Board when his
counsel questioned the authority of the new Chairman. However, after seeing the
notice of the Provincial Election Supervisor, his counsel agreed to the opening of the
canvassing. In fact, petitioner thereafter actively participated in the
proceedings. Consequently, COMELEC concluded that -
x x x x Such acts could be justifiably taken as acquiescence to the new composition of
the Board. Otherwise, had he felt aggrieved thereby, he should have elevated the
issue on appeal to the Commission x x x x
[6]

Particularly, Sec. 19 of R.A. 7166 provides -
Sec. 19. Contested Composition or Proceedings of the Board; Period to Appeal;
Decision by the Commission. - Parties adversely affected by a ruling of the board of
canvassers on questions affecting the composition or proceedings of the board may
appeal the matter to the Commission within three (3) days from a ruling thereon x x x
x
Although Sec. 17 of R.A. 7166 and Sec. 5, par. (a)(1) (not Sec. 4 as erroneously
cited by petitioner), of Rule 27 of the COMELEC Rules of Procedure also allow filing of
a petition directly with respondent COMELEC when the issue involves the illegal
composition of the Board, Sec. 5, par. (b), of the same Rule requires that 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. In the present case, the petition was filed five (5) days
after respondent Longcop had been proclaimed by the Board. At any rate, the real
issue appears to be - not what it appears to petitioner - whether he can still dispute
the composition of the Board after having actively participated in the proceedings
therein. In this regard, we sustain respondent COMELEC.
Section 20 of R.A. 7166 (not Sec. 235 of the Omnibus Election Code as mistakenly
invoked by petitioner) outlines the procedure in the disposition of contested election
returns -
Sec. 20. Procedure in Disposition of Contested Election Returns. - (a) Any candidate,
political party or coalition of political parties contesting the inclusion or exclusion in
the canvass of any election returns on any of the grounds authorized under Article XX
or Sections 234, 235 and 236 of Article XIX of the Omnibus Election Code shall submit
their oral objection to the chairman of the board of canvassers at the time the
questioned return is presented for inclusion in the canvass. Such objection shall be
recorded in the minutes of the canvass.
x x x x
(c) Simultaneous with the oral objection, the objecting party shall also enter his
objection in the form for written objections to be prescribed by the
Commission. Within twenty-four (24) hours from and after the presentation of such
an objection, the objecting party shall submit the evidence in support of the
objection x x x x The board shall not entertain any objection or opposition unless
reduced to writing in the prescribed forms x x x x
(d) Upon receipt of the evidence, the board shall take up the contested returns,
consider the written objections thereto and opposition, if any, and summarily and
immediately rule thereon. The board shall enter its ruling on the prescribed form and
authenticate the same by the signatures of its members.
(e) Any party adversely affected by the ruling of the board shall immediately inform
the board if he intends to appeal said ruling. The board shall enter said information
in the minutes of the canvass x x x x
(f) After all the uncontested returns have been canvassed and the contested returns
ruled upon by it, the board shall suspend the canvass. Within forty-eight (48) hours
therefrom, any party adversely affected by the ruling may file with the board a
written and verified notice of appeal; and within an unextendible period of five (5)
days thereafter, an appeal may be taken to the Commission.
The Minutes of the Board revealed the following facts -
May 10, 1995 - The Board resumes at 8:00 a.m. Precinct 7-A, Jubasan, was received
by the Board. While the Board was about to open said returns, a written protest was
filed by Laodenio. The protest was for two precincts; precinct 7-A and precinct 5-A;
informing the board to stop counting on the ground that the returns are (sic)
tampered. Although the protest was not in proper form, the Board deferred the
canvass of said return to give protestant enough time to present his evidence.
After a thorough discussion of the two legal counsel, the members of the board of
canvassers denied the objections of Laodenio on the ground that an oral objection
should simultaneously be filed with a written objection in a proper form. Majority of
the board voted for the inclusion of the returns from precinct 7-A on the ground that
the protest was not in proper form. The parties were notified of the ruling of the
Board in open session. The Chairman of the Board start(ed?) to open the envelope of
precinct no. 7-A and the same was examined by counsel of both parties.
[7]

The Board, upon examination of the returns from precinct 7-A, found it to be
inside an envelope with serial no. 073983 signed by all the members of the Board and
with paper seal no. 516478 likewise signed by all of them. The returns bore the
respective signatures and thumbmarks of the poll clerk, the third member and all six
watchers. The Minutes disclosed further -
May 12, 1995, at 2:00 p.m., the members of the Board resume to canvass the election
returns for precinct 7-A. It was supposed to canvass last May 10, 1995, but was
deferred because the Board waited for protestant Laodenio to file his appeal from our
ruling on May 10, 1995. Since there was no appeal, the Board proceeded with the
canvass of precinct 7-A.
At 2:37 p.m., Laodenio filed his protest in proper form but the board denied the
protest on the ground that it was filed out of time. The protest was filed after the
canvass of the election returns was completed.
[8]

With regard to the action of the Board on the election returns from precinct 5-A,
the Minutes narrated as follows -
Precinct 5-A. - An envelope with serial no. 073973 signed by all the members of the
board with paper seal. The envelope is in good condition. The election returns was
properly signed by all members of the board with their thumbmarks and the watchers
have also their signatures and thumbmarks in the corresponding spaces. An oral
protest was filed by petitioner. At 4:49 p.m., a protest in prescribed form was
filed. At 8:00 p.m., the Board of Canvassers voted as follows: The chairman for
exclusion and the two members for inclusion because on its face the election returns
does not have any sign of tampering and that when the election returns copy for the
Municipal Trial Court was opened to compare with the contested returns the entries
are (sic) the same. The parties were informed of the ruling in open session. After the
ruling, the protestant did not indicate his intention to appeal.
[9]

Clearly, the proceedings of the Board were in accordance with law.
Petitioner argues next that the election protest was filed ad cautelam or as a
precautionary measure to preserve his rights which did not thereby oust respondent
COMELEC of jurisdiction. He invokes Samad v. COMELEC
[10]
where it was held that, as
a general rule, the filing of an election protest or a petition for quo
warranto precludes the subsequent filing of a pre-proclamation controversy or
amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the
authority to inquire into and pass upon the title of the protestee or the validity of his
proclamation. The reason is that once the competent tribunal has acquired
jurisdiction of an election protest or a petition for quo warranto all questions relative
thereto will have to be decided in the case itself and not in another proceeding,
otherwise, there will be confusion and conflict of authority. Conformably therewith,
we have ruled in a number of cases that after a proclamation has been made a pre-
proclamation case before the COMELEC is, logically, no longer viable.
[11]
The rule
admits of exceptions, however, as where: (a) the board of canvassers was improperly
constituted; (b) quo warranto was not the proper remedy; (c) what was filed was not
really a petition for quo warranto or an election protest but a petition to annul a
proclamation; (d) the filing of a quo warranto petition or an election protest was
expressly made without prejudice to the pre-proclamation controversy or was
made ad cautelam; and, (e) the proclamation was null and void.
Petitioner relies on the fourth exception and invokes Agbayani v. Commission on
Elections
[12]
where the Court found that petitioner's real intention in filing the
election protest ad cautelam was to insure the preservation of all the ballot boxes
used in the local elections. Thus -
Under COMELEC Res. No. 2035 dated September 7, 1988, all such ballot boxes would
be made available for the then forthcoming barangay elections as long as they were
not involved in any pre-proclamation controversy, election protest or official
investigation. As the above-mentioned cases involved only nine precincts, it was only
prudent for the petitioner to file his protest ad cautelam in case the pre-
proclamation controversy was ultimately dismissed and it becomes necessary for him
to activate his protest. The protest would involve all the precincts in the province. If
he had not taken this precaution, all the other ballot boxes would have been emptied
and their contents would have been burned and forever lost.
But, a distinction must be drawn between Agbayani and the instant
case. Petitioner here simply alleges that the election protest was filed as a
precautionary measure to preserve his rights without bothering to elaborate
thereon. There is no reason at all for the exception to apply in the case before
us. Rather, COMELEC's reliance on Padilla is the more appropriate
remedy.
[13]
Respondent Longcop having been proclaimed and having assumed office -
x x x x pre-proclamation controversy is no longer viable at this point of time and
should be dismissed x x x x Pre-proclamation proceedings are summary in
nature. There was no full-dress hearing essential to the task of adjudication with
respect to the serious charges of 'irregularities,' etc., made by petitioner. An election
contest would be the most appropriate remedy. Instead of the submission of mere
affidavits, the parties would be able to present witnesses subject to the right of
confrontation, etc. Recourse to such remedy would settle the matters in controversy
conclusively and once and for all.
In the absence of any jurisdictional infirmity or error of law, the conclusion
reached by respondent COMELEC on a matter that falls within its competence and
primary jurisdiction is entitled to utmost respect.
[14]

WHEREFORE, the petition is DISMISSED. The Resolution of respondent
Commission on Elections of 28 August 1995 dismissing the pre-proclamation
controversy as well as its Resolution denying reconsideration thereof is AFFIRMED.
SO ORDERED.


EN BANC

G.R. No. 120823 October 24, 1995
HADJI HAMID PATORAY, petitioner,
vs.
COMMISSION ON ELECTIONS, (NEW) MUNICIPAL BOARD OF CANVASSERS OF
TAMPARAN, LANAO DEL SUR AND TOPAAN D. DISOMIMBA, respondents.

MENDOZA, J.:
This is a petition for certiorari and prohibition for the annulment of the resolution,
dated June 30, 1995, of the Second Division of the Commission on Elections and the
resolution, dated July 12, 1995, of the COMELEC en banc, ordering the exclusion of
two election returns from the canvass for the mayoralty of the Municipality of
Tamparan, Lanao del Sur.
Petitioner and private respondent were among the candidates for mayor of Tamparan
in the election of May 8, 1995. During the canvassing of votes by the Municipal Board
of Canvassers (MBC), private respondent objected to the inclusion of the election
returns from Precinct Nos. 16, 17, 19 and 20-A on the grounds that the returns had
been "prepared under duress, threats, coercion, and intimidation" and that they were
"substituted, fraudulent and obviously manufactured returns."
1

On May 31, 1995, the MBC, after receiving the evidence of the parties, denied private
respondent's objections and included the four (4) questioned election returns, noting
that they appeared to be "clean, genuine and regular on [their] faces."
On June 3, 1995, private respondent filed an appeal (docketed as SPC No. 95-266)
from the rulings of the MBC. Among the record transmitted to the COMELEC was the
report of the MBC on the canvass of the election returns from 45 precincts, which
showed, among the other things, the total number of votes received by each of the
parties as follows:
Hadji Hamid
Patoray
3,778
votes
Topaan
Disomimba
3,753
votes

Difference 25 Votes
On June 30, 1995, the Second Division of the COMELEC, after hearing, affirmed the
ruling of the MBC with respect to the election returns from Precinct Nos. 17 and 19
but reversed it with respect to the election returns from Precinct Nos. 16 and 20-A.
The Second Division ordered these returns excluded from the count.
2
As petitioner
alleges, this ruling would erase his margin of twenty-five (25) votes and give private
respondent instead a lead of 193 votes, thus:
Petitioner Private
Respondent
Votes credited before
exclusion
3,778.00 3,753.00
Less: Precinct No.
16
(237.00) (107.00)
Precinct No.
20-A
(122.00) (34.00)
TOTAL 3,419.00 3,612.00
On July 3, 1995, petitioner filed a motion for reconsideration, but the COMELEC en
banc denied his motion in its resolution of July 12, 1995, even as the COMELEC en
banc granted private respondent's motion for the constitution of a new MBC to
implement the Second Division's resolution.
3

Hence, this petition.
In ordering the exclusion of the two returns, the Second Division held: (1) that the
status of the two election returns as prima facie evidence of the results of the
elections had been overcome by the affidavits of the chairpersons of the Board of
Inspectors of Precinct Nos. 16 and 20-A to the effect that the election returns
contained different number of votes from what they had tallied and therefore the
returns in question should be considered "manufactured, substituted or falsified;" (2)
that contrary to the finding of the MBC that the election returns were "clean, genuine
and regular on [their] faces," Election Return No. 661290 from Precinct No. 16,
according to the minutes of the MBC, showed a discrepancy between the "taras" and
the written figures, while Election Return No. 661295 from Precinct No. 20-A lacked
data as to provincial and congressional candidates; and (3) that the Certificates of
Votes cast in the two precincts, which showed different number of votes, constitute
evidence of tampering, alteration, and falsification as provided in 17 of R.A. No.
7166.
Petitioner contends that the COMELEC excluded from canvass the questioned returns
without examining other authentic copies of the questioned returns or ordering the
opening of the ballot boxes solely on the basis of the affidavits of the BEI chairpersons
whose recollection of the votes obtained by the parties herein was at best unreliable.
Petitioner claims that it was not possible to commit any falsification in the
preparation of the returns since this was done in the presence of the parties'
pollwatchers. He contends that election returns are prima facie evidence of their
genuineness and due execution whereas the affidavits presented by private
respondent to show that the copy of the return given to the MBC was manufactured
came from biased sources.
He argues that the COMELEC should have ordered other authentic copies of the
election returns to be used or directed a recount of the votes to determine private
respondent's claim, as provided in 235 and 236 of the Omnibus Election Code.
Private respondent, on the other hand, defends the use of the Certificates of Votes
and affidavits of the BEI chairpersons on the ground that all copies of the election
returns in question (i.e., those for the COMELEC, the Provincial Board of Canvassers,
the Municipal Treasurer and the Municipal Trial Court) had been delivered to the
Election Officer, who had the election returns in his possession for eight days, from
May 18 to 26, 1995, until the MBC, of which he was the chairperson, used them.
Private respondent implies that all copies of the election returns could have been
substituted by spurious ones because of the opportunity which the Election Officer
had and that therefore it was futile for the COMELEC to use the other copies of the
election returns.
For its part the COMELEC cites R.A. No. 6646, 17 which provides that notwithstanding
the provisions of 235-236 of the OEC, Certificates of Votes may be used to prove
"tampering, alteration, falsification or any other anomaly committed in the election
returns concerned" and maintains that on the basis of the affidavits of the BEI
chairpersons the election returns in question were unquestionably manufactured and
substituted for the genuine returns.
We hold that the COMELEC's Second Division correctly ordered the exclusion of
Election Return No. 661290 (Precinct No. 16), it appearing that it contained a
discrepancy between the "taras" and the written figures. In addition, however, the
COMELEC's Second Division should have ordered a recount of the ballots or used the
Certificate of Votes cast in the precinct in question to determine the votes for each of
the parties in this case.
Thus 236 of tile Omnibus Election Code provides:
Sec. 236. Discrepancies in election returns. In case it appears to the
board of canvassers that there exists discrepancies in the other
authentic copies of the election returns from a polling place or
discrepancies in the votes of any candidate in words and figures in the
same return, and in either case the difference affects the results of the
election, the Commission, upon motion of the board of canvassers or any
candidate affected and after due notice to all candidates concerned,
shallproceed summarily to determine whether the integrity of the
ballot box had been preserved, and once satisfied thereof shall order
the opening of the ballot box to recount the votes cast in the polling
place solely for the purpose of determining the true result of the count
of votes of the candidates concerned. (Emphasis added)
On the other hand, 17 of R.A. No. 6646 (Electoral Reforms Law of 1987)
provides:
Sec. 17. Certificate of Votes as Evidence. The provisions of Sections
235 and 236 of Batas Pambansa Blg. 881 notwithstanding, the certificate
of votes shall be admissible in evidence to prove tampering, alteration,
falsification or any anomaly committed in the election returns
concerned, when duly authenticated by testimonial or documentary
evidence presented to the board of canvassers by at least two members
of the board of election inspectors who issued the certificate: Provided,
That failure to present any certificate of votes shall not be a bar to the
presentation of other evidence to impugn the authenticity of the
election returns.
The Certificate of Votes is evidence not only of tampering, alteration, falsification or
any other anomaly in the preparation of election returns but also of the votes
obtained by candidates. (See Balindong v. COMELEC, 27 SCRA 567 [1969])) The
Certificate of Votes in Precinct No. 16
4
shows that petitioner Hadji Hamid Patoray
received 207 votes (not 237 as indicated in the election return), while private
respondent obtained 137 (not 107 as indicated in the election return). The difference
could thus affect the result of the voting for mayor. The COMELEC's Second Division
could also have ordered a recount of the votes cast after determining that the ballot
box has not been tampered with in accordance with 236 of the OEC. The failure of
COMELEC to do either, after excluding the election return will result in the
disfranchisement of the voters in Precinct No. 16.
On the other hand we hold that the COMELEC's Second Division erred in ordering the
exclusion of Election Return No. 661295 on the basis of the Certificate of Votes cast in
Precinct No. 20-A and the affidavit of the chairperson of the BEI of Precinct No. 20-A.
As already stated, the COMELEC's Second Division ordered the exclusion of the
election return from this precinct for being incomplete in the sense that it lacked
data as to provincial and congressional candidates. This is, therefore, not a case of
discrepancy in an election return, justifying resort to the Certificate of Votes under
236 of the OEC, in relation to R.A. No. 6646, 17, but one involving material defects
in an election return under 234 of the OEC. Consequently, the case does not come
within the purview of R.A. No. 6646, 17. Rather, the applicable provision is 234 of
the OEC which states:
Sec. 234. Material defects in the election returns. If it should clearly
appear that some requisites in form or data had been omitted in the
election returns, the board of canvassers shall call for all the members
of the board of election inspectors concerned by the most expeditious
means, for the same board to effect the correction: Provided, That in
case of the omission in the election returns of the name of any
candidate and/or his corresponding votes, the board of canvassers shall
require the board of election inspectors concerned to complete the
necessary data in the election returns and affix therein their
initials: Provided, further, That if the votes omitted in the returns
cannot be ascertained by other means except by recounting the ballots,
the Commission, after satisfying itself that the identity and integrity of
the ballot box have not been violated, shall order the board of election
inspectors to open the ballot box, and, also after satisfying itself that
the integrity of the ballots therein has been duly preserved, order the
board of election inspectors to count the votes for the candidate whose
votes have been omitted with notice thereof to all candidates for the
position involved and thereafter complete the returns.
The right of a candidate to avail of this provision shall not be lost or
affected by the fact that an election protest is subsequently filed by any
of the candidates.
Moreover, the Certificate of Votes cast in Precinct No. 20-A cannot be used even if
R.A. No. 6646, 17 were applicable, because it was signed only by the chairperson of
the BEI. R.A. No. 6646, 16 requires that it be signed and thumbmarked by each
member of the BEI which issued the certificate.
Consistently with the summary nature of the proceedings, what the COMELEC's Second
Division could have done was simply to order a recount of the votes cast in the two
precincts and direct the proclamation of the winner accordingly.
WHEREFORE, the questioned resolutions of the Commission on Elections are set aside
and the Commission is ordered to issue another one in accordance with this decision.
SO ORDERED.


EN BANC
G.R. No. L-25444 January 31, 1966
WENCESLAO RANCAP LAGUMBAY, petitioner,
vs.
THE COMMISSION ON ELECTIONS and CESAR CLIMACO, respondents.
Wenceslao R. Lagumbay for the petitioner.
Ambrosio Padilla for the respondents.
BENGZON, C.J.:
This petition prays for revision of an order of the Commission on Elections declining to
reject the returns of certain precincts of some municipalities in Mindanao. The
Constitution provides for review by this Court of the rulings of the said Commission.
The matter being urgent, and having reached the conclusion that the returns of
certain questioned precincts were "obviously manufactured" within the meaning of
pertinent jurisprudence, particularly Mitchell v. Stevens,
1
we issued on December 24,
1965, a short resolution upholding the Commission's power and duty to reject the
returns of about fifty precincts.
It appearing therein that contrary to all statistical probabilities in the first
set, in each precinct the number of registered voters equalled the number of
ballots and the number of votes reportedly cast and tallied for each and
every candidate of the Liberal Party, the party in power; whereas, all the
candidates of the Nacionalista Party got exactly zero; and in the second set,
again contrary to all statistical probabilities all the reported votes were for
candidates of the Liberal Party, all of whom were credited with exactly the
same number of votes in each precinct, ranging from 240 in one precinct to 650
in another precinct; whereas, all the candidates of the Nacionalista Party were
given exactly zero in all said precincts.
We opined that the election result to said precincts as reported, was utterly
improbable and clearly incredible. For it is not likely, in the ordinary course of things,
that all the electors of one precinct would, as one man, vote for all the eight
candidates of the Liberal Party, without giving a single vote to one of the eight
candidates of the Nacionalista Party. Such extraordinary coincidence was quite
impossible to believe, knowing that the Nacionalista Party had and has a nationwide
organization, with branches in every province, and was, in previous years, the party in
power in these islands.
We also know from our experience in examining ballots in the three Electoral
Tribunals (Presidential, Senate, and House) that a large portion of the electors do not
fill all the blanks for senators in their ballots. Indeed, this observation is confirmed
by the big differences in the votes received by the eight winning senators in this as
well as in previous national elections;
2
almost a million votes between the first place
and the eight. Furthermore, in 1965, the total number of electors who cast their
votes was 6,833,369 (more or less). If every voter had written eight names on his
ballot, the total number of votes cast for all the candidates would be that number
multiplied by 8, namely 54,666,952. But the total number of the votes tallied for the
candidates for senator amounted to 49,374,942 only. The difference between the two
sums represents the number of ballots that did not containeight names for senators.
In other words, some 5 million ballots did not carry eight names. Of course, this is a
rough estimate, because some ballots may have omitted more names, in which case,
the number of incomplete ballots would be less. But the general idea and the
statistical premise is there.
The same statistical result is deducible from the 1963 election data: total number of
electors who voted, 7,712,019; if each of them named eight senators, the total votes
tallied should have been 61,696,152; and yet the total number tallied for all the
senatorial candidates was 45,812,470 only. A greater number of incomplete ballots.
It must be noted that this is not an instance wherein one return gives to one
candidate all the votes in the precinct, even as it gives exactly zero to the other. This
is not a case where some senatorial candidates obtain zero exactly, while some others
receive a few scattered votes. Here, all the eight candidates of one party
garnered all the votes, each of them receiving exactly the same number, whereas all
the eight candidates of the other party got precisely nothing.
The main point to remember is that there is no block-voting nowadays.
What happened to the vote of the Nacionalista inspector? There was one in every
precinct. Evidently, either he became a traitor to his party, or was made to sign a
false return by force or other illegal means. If he signed voluntarily, but in breach of
faith, the Nacionalista inspector betrayed his party; and, any voting or counting of
ballots therein, was a sham and a mockery of the national suffrage.
Hence, denying prima facie recognition to such returns on the ground that they are
manifestly fabricated or falsified, would constitute a practical approach to the
Commission's mission to insure free and honest elections.
In Mitchell vs. Stevens, supra, the returns showed a noticeable excess of votes over
the number of registered voters, and the court rejected the returns as obviously
"manufactured". Why? The excess could have been due to the fact that, disregarding
all pertinent data, the election officers wrote the number of votes their fancy
dictated; and so the return was literally a "manufactured", "fabricated" return. Or
maybe because persons other than voters, were permitted to take part and vote; or
because registered voters cast more than one ballot each, or because those in charge
of the tally sheet falsified their counts. Hence, as the Mitchell decision concluded,
the returns were "not true returns . . . but simply manufactured evidences of an
attempt to defeat the popular will." All these possibilities and/or probabilities were
plain fraudulent practices, resulting in misrepresentation of the election outcome.
"Manufactured" was the word used. "Fabricated" or "false" could as well have been
employed.
The same ratio decidendi applies to the situation in the precincts herein mentioned.
These returns were obviously false or fabricated prima facie. Let us take for
example, precinct No. 3 of Andong, Lanao del Sur. There were 648 registered voters.
According to such return all the eight candidates of the Liberal Party got 648
each,
3
and the eight Nacionalista candidates got exactly zero. We hold such return to
be evidently fraudulent or false because of the inherent improbability of such a result
against statistical probabilities specially becauseat least one vote should have
been received by the Nacionalista candidates, i.e., the vote of the Nacionalista
inspector. It is, of course, "possible" that such inspector did not like his party's
senatorial line-up; but it is not probable that he disliked all of such candidates, and it
is not likely that he favored all the eight candidates of the Liberal Party. Therefore,
most probably, he was made to sign an obviously false return, or else he betrayed his
party, in which case, the election therein if any was no more than a barefaced
fraud and a brazen contempt of the popular polls.
Of course we agree that frauds in the holding of the election should be handled and
finally settled by the corresponding courts or electoral tribunals. That is the
general rule, where testimonial or documentary evidence, is necessary; but where the
fraud is so palpable from the return itself (res ipsa loquitur the thing speaks for
itself), there is no reason to accept it and give it prima facie value.
At any rate, fraud or no fraud, the verdict in these fifty precincts may ultimately be
ascertained before the Senate Electoral Tribunal.
4
All we hold now, is that the returns
show "prima facie" that they do not reflect true and valid reports of regular voting.
The contrary may be shown by candidate Climaco in the corresponding election
protest.
The well-known delay in the adjudication of election protests often gave the
successful contestant a mere pyrrhic victory, i.e., a vindication when the term of
office is about to expire, or has expired. And so the notion has spread among
candidates for public office that the "important thing" is the proclamation; and to win
it, they or their partisans have tolerated or abetted the tampering or the
"manufacture" of election returns just to get the proclamation, and then let the
victimized candidate to file the protest, and spend his money to work for an empty
triumph.
It is generally admitted that the practice has prevailed in all previous elections. Never
was the point pressed upon us in a more clear-cut manner. And without, in any way,
modifying our stand as outlined in the Nacionalista Party vs. Commission decision, we
feel the mores of the day require application even extension of the principle in
the Mitchell decision, which is realistic and common sensical even as it strikes a blow
at such pernicious "grab - the - proclamation - prolong - the - protest" slogan of some
candidates or parties.
It is strongly urged that the results reported in these returns are quite "possible",
bearing in mind the religious or political control of some leaders in the localities
affected. We say, possible, not probable. It is possible to win the sweepstakes ten
times; but not probable. Anyway, judges are not disposed to believe that such
"control" has proved so powerful as to convert the electors into mere sheep or robots
voting as ordered. Their reason and conscience refuse to believe that 100% of the
voters in such precincts abjectly yet lawfully surrendered their precious freedom to
choose the senators of this Republic.
Indeed, social scientists might wonder whether courts could, consistently with
morality and public policy,
5
render judgment acknowledging such "control" or
validating such "controlled votes" as candidate Climaco chose to call them.
In view of the foregoing, and overlooking some intemperate language which detracts
from the force of the arguments, we hereby deny the motion to reconsider our
resolution of December 24, 1965, as well as the petition for a re-hearing.
Concepcion, Reyes, J.B.L. Dizon and Makalintal, concur.



EN BANC


VIRGINIO VILLAMOR, G.R. No. 169865
Petitioner,
Present:

Panganiban, C.J.,
Puno,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
- versus - Carpio,
Austria-Martinez,
Corona,
Carpio-Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario,
Garcia, and
Velasco, Jr., JJ.
COMMISSION ON ELECTIONS
and AMYTIS
*
DE DIOS-BATAO, Promulgated:
Respondents.
July 21, 2006
x ---------------------------------------------------------------------------------------- x

DECISION


YNARES-SANTIAGO, J.:


This petition for certiorari under Rule 65 of the Rules of Court seeks to annul
the April 11, 2005 Resolution
[1]
of the Second Division of the Commission on Elections
(COMELEC) in EAC No. A-11-2004 as well as the Order of the COMELEC En Banc
dated August 5, 2005. The assailed resolution affirmed the Order
[2]
dated July 23,
2004 of the Regional Trial Court of Danao City, Branch 25 in Case No. EP-2004-02
which reconsidered its Order
[3]
dated June 24, 2004 dismissing the election protest
filed by respondent Amytis De Dios-Batao.

The antecedent facts are as follows:

On May 13, 2004, petitioner Virginio Villamor was proclaimed as mayor of
Carmen, Cebu, by the Municipal Board of Canvassers (MBC) in the elections held
on May 10, 2004 over his opponent, respondent Amytis De Dios-Batao. On May 17,
2004, respondent filed a petition to annul the proclamation of petitioner alleging as
grounds the illegal composition of the MBC and its proceedings. The case was
docketed as SPC No. 04-083 and raffled to the COMELEC Second Division.
[4]


Subsequently, or on May 24, 2004, respondent filed an election protest with
the Regional Trial Court of Danao City which was docketed as Case No. EP-2004-02
and raffled to Branch 25 thereof. Petitioner filed his Answer to the Petition with
Counter Protest on June 7, 2004.
[5]
However, in its Order
[6]
dated June 24, 2004, the
trial court dismissed the election protest for lack of jurisdiction because it was filed
one-day late.

Under Section 3, Rule 35 of the COMELEC Rules of Procedure, an election
protest should be filed within 10 days from the date of proclamation of the results of
the election. Since petitioner was proclaimed on May 13, 2004, respondent had
until May 23, 2004 to file an election protest. However, respondent filed the same
only on May 24, 2004, thus, it was dismissed by the trial court in an Order dated June
24, 2004.
[7]


A Motion for Reconsideration was filed by the respondent which was granted by
the trial court in an Order dated July 23, 2004 because it found that the election
protest was actually filed on time. Since the last day to file the protest fell on May
23, 2004 which was a Sunday, thus, under Section 1, Rule 22 of the Rules of Court,
the time should not run until the next working day which was May 24, 2004. Section
5, Rule 135 of the Rules of Court gives the courts inherent power to amend and
control its processes and orders to conform with law and justice.
[8]


Petitioner appealed the Order granting respondents motion for reconsideration
to the COMELEC and was docketed as EAC No. A-11-2004 and was raffled to its Second
Division. In the assailed Resolution dated April 11, 2005, the Second Division of the
COMELEC dismissed the appeal for lack of merit. On August 5, 2005, the COMELEC En
Banc denied petitioners motion for reconsideration.

In the meantime, the Second Division of the COMELEC issued on May 9, 2005 a
Resolution
[9]
in SPC No. 04-083 which is the petition to annul the proclamation of
petitioner, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Petition To Declare
Null And Void Proclamation dated 17 May 2004 filed by petitioners
Amythis De Dios Batao, et al., is hereby DISMISSED for lack of merit.

SO ORDERED.
[10]


Hence, this petition raising the following issues:

1. MAY A REGULAR COURT, IN AN ELECTION PROTEST, ACT
ON A MOTION FOR RECONSIDERATION FROM AN ORDER OF DISMISSAL OF
THE ELECTION PROTEST CONSIDERING THAT A MOTION FOR
RECONSIDERATION IS A PROHIBITED PLEADING?

2. MAY A REGULAR COURT ADMIT AN ELECTION PROTEST
PREMATURELY CONSIDERING THAT THE PROTESTANT HAS STILL A
PENDING PETITION FOR PRE-PROCLAMATION CONTROVERSY IN THE
ANNULMENT OF THE PROCLAMATION OF THE PROTESTEE IN THE
COMELEC AND IF IT DOES SO, MAY THE PERIOD FOR THE FILING OF THE
COUNTER-PROTEST BE COUNTED FROM THE RECEIPT OF THE RESOLUTION
OF THE COMELEC DENYING THE PETITION FOR THE ANNULMENT OF THE
PROCLAMATION?
[11]


The core issues for resolution are as follows: (1) whether the trial court can act
on a motion for reconsideration in an election protest; and (2) whether the trial court
prematurely admitted respondents election protest pending a pre-proclamation
controversy.

We shall first discuss the second issue. As a general rule, the proper remedy
after the proclamation of the winning candidate for the position contested would be
to file a regular election protest or a petition for quo warranto.
[12]
The filing of an
election protest or a petition for quo warranto precludes the subsequent filing of a
pre-proclamation controversy or amounts to the abandonment of one earlier filed,
thus depriving the COMELEC of the authority to inquire into and pass upon the title of
the protestee or the validity of his proclamation.
[13]
The reason is that once the
competent tribunal has acquired jurisdiction of an election protest or a petition
for quo warranto, all questions relative thereto will have to be decided in the case
itself and not in another proceeding. This procedure will prevent confusion and
conflict of authority.
[14]


Moreover, not all actions seeking the annulment of proclamation suspend the
running of the period for filing an election protest or a petition for quo
warranto.
[15]
For it is not the relief prayed for which distinguishes actions under
248
[16]
from an election protest or quo warranto proceedings, but the grounds on
which they are based.
[17]


In the case at bar, respondents petition to annul the proclamation rested
mainly on the alleged illegal composition of the municipal board of canvassers
[18]
and
its proceedings which is an issue that may be properly raised in a pre-proclamation
controversy.
[19]
Under paragraph (b) of Section 5 of Rule 27 of the COMELEC Rules of
Procedure, if the petition involves the illegal composition of the board of canvassers,
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. Thus, we held in Laodenio v. Commission on
Elections
[20]
that when the issue involves the illegal composition of the Board, the
same cannot be questioned after the proclamation of the winner, to wit:

Although Sec. 17 of R.A. 7166 and Sec. 5 par. (a)(1) (not Sec. 4 as
erroneously cited by petitioner), of Rule 27 of the COMELEC Rules of
Procedure also allow filing of a petition directly with respondent
COMELEC when the issue involves the illegal composition of the Board,
Sec. 5, par. (b), of the same Rule requires that 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. In the present
case, the petition was filed five (5) days after respondent Longcop had
been proclaimed by the Board. At any rate, the real issue appears to be
not what it appears to petitioner whether he can still dispute the
composition of the Board after having actively participated in the
proceedings therein. In this regard, we sustain respondent COMELEC.
[21]


In the instant case, respondents petition to annul petitioners proclamation
based on the alleged illegal composition of the board of canvassers is a pre-
proclamation controversy which should have been filed prior to petitioners
proclamation. However, respondent filed the petition on May 17, 2004 only or four
days after petitioners proclamation. As such, the filing of the petition to annul the
proclamation of petitioner did not suspend the running of the reglementary period
within which to file an election protest and inevitably, it did not suspend the latters
period to file an Answer with Counter Protest. Accordingly, the subsequent filing of
the election protest on May 24, 2004 by respondent amounted to the abandonment of
the pre-proclamation controversy earlier filed.

Anent the first issue, petitioner asserts that a motion for reconsideration of the
election protest filed by respondent was a prohibited pleading thus its filing did not
toll the running of the period to appeal. Consequently, when the latter failed to
appeal within five days from theJune 24, 2004 Order of the trial court, the dismissal
of the election protest became final.

On the other hand, respondent alleges that a motion for reconsideration is not
a prohibited pleading and claims that even if the motion was not filed, the trial court
could reinstate the petition motu proprio before the said order became final.

We agree with petitioner.

Under Section 256 of the Omnibus Election Code (OEC),
[22]
the trial court
cannot entertain a motion for reconsideration of its decision in an election contest
affecting municipal officers filed by the aggrieved party. However, the latter may
appeal to the Intermediate Appellate Court (now COMELEC) within five days after the
receipt of a copy of the decision. Likewise, Section 19, Rule 35 of the COMELEC Rules
of Procedure implementing the abovementioned Section 256 provides:

Sec. 19. Promulgation and Finality of Decision. The decision of
the Court shall be promulgated on a date set by it of which due notice
must be given the parties. It shall become final five (5) days after its
promulgation. No motion for reconsideration shall be entertained.
(Emphasis supplied)

Respondent received a copy of the Order dismissing the election protest for
lack of jurisdiction on June 25, 2004. Thus, respondent had until June 30,
2004 within which to file an appeal with the COMELEC but failed to do so. Instead,
respondent filed a motion for reconsideration which is a prohibited pleading. As such,
it did not toll the running of the prescriptive period.

In Veloria v. Commission on Elections,
[23]
a case involving candidates for
municipal mayor, vice-mayor, and members of the Sangguniang Bayan of Manaoag,
Pangasinan, where instead of perfecting an appeal within five days as provided by
law, petitioners filed a motion for reconsideration, we held that:

The COMELEC, therefore, correctly ruled that the motion for
reconsideration filed by the petitioners in the trial court on March 20,
1990 did not suspend the period to appeal since a motion for
reconsideration is prohibited under Section 256 of the Omnibus Election
Code.

Since the right to appeal is not a natural right nor is it a part of
due process, for it is merely a statutory privilege that must be exercised
in the manner and according to procedures laid down by law, x x x and
its timely perfection within the statutory period is mandatory and
jurisdictional x x x, Judge Abasolo gravely abused his discretion when he
gave due course to the petitioners tardy appeal from his predecessors x
x x resoluti(o)n x x x dismissing the petitioners election protest. Said
resolution had become final and unappealable.
[24]


The rules in ordinary civil procedure do not apply in election cases except by
analogy or in a suppletory character and whenever practicable and
convenient.
[25]
Section 256 of the Omnibus Election Code and Section 19, Rule 35 of
the COMELEC Rules of Procedure clearly state that no motion for reconsideration
should be entertained. Thus, there is no room to apply the rules of ordinary civil
procedure suppletorily. Nor can resort be made by the trial court to Section 5(g)
[26]
of
Rule 135 of the Rules of Court to sustain its actions. The trial court did not conform
to law and justice when it granted the motion for reconsideration which is a
prohibited pleading.

WHEREFORE, in light of the foregoing, the petition is GRANTED. The
Resolution dated April 11, 2005 of the COMELEC Second Division and the Order
dated August 5, 2005 of the COMELEC En Banc in EAC No. A-11-2004 which affirmed
the Order dated July 23, 2004of the Regional Trial Court of Danao City, Branch 25 in
Case No. EP-2004-02 granting the motion for reconsideration of respondent Amytis De
Dios-Batao, are ANNULLED and SET ASIDE. The Order dated June 24, 2004 of the
Regional Trial Court dismissing respondents election protest for lack of jurisdiction
is REINSTATED.

SO ORDERED.




EN BANC

[G.R. No. 105323. July 3, 1992.]

FRANCISCO I. CHAVEZ, Petitioner, v. COMMISSION ON ELECTIONS, Respondent.


SYLLABUS


1. POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL REVIEW OVER OTHER
BRANCHES OF GOVERNMENT; RULE; CASE AT BAR. The alleged inaction of
respondent Comelec in ordering the deletion of Melchor Chavezs name in the list of
qualified candidates does not call for the exercise of the Courts function of judicial
review. This Court can review the decisions or orders of the Comelec only in cases of
grave abuse of discretion committed by it in the discharge of its quasi-judicial powers
and not those arising from the exercise of its administrative functions. Respondent
Commissions alleged failure to implement its own resolution is undoubtedly
administrative in nature, hence, beyond judicial interference (see Filipinas
Engineering Co. v. Ferrer, 135 SCRA 25 [1985]; Aratuc v. Commission on Elections, 88
SCRA 251 [1979]; see also Pungutan v. Abubakar, 43 SCRA 1 [1972]). As aptly observed
by the Solicitor General, respondent Comelec can administratively undo what it has
administratively left undone (Manifestation, p. 2). Moreover, respondent Comelec has
in fact, on May 6, 1992 to be exact, ordered the deletion of Melchor Chavezs name
not only on the official list of candidates, but also on the election returns, tally sheet
and certificate of canvass (Comment, p. 7). Hence, petitioners allegation that
respondent Comelec failed to implement Res. No. 92-132 does not hold water.

2. ID.; LEGISLATIVE DEPARTMENT; HOUSE ELECTORAL TRIBUNAL; SHALL BE THE SOLE
JUDGE OF ALL CONTEST RELATING TO THE ELECTION, RETURNS AND QUALIFICATIONS
OF THEIR RESPECTIVE MEMBERS. Thus, Sec. 17, Art. VI of the Constitution provides
that" (t)he Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns,
and qualifications of their respective Members. . . ." (Emphasis supplied). The word
"sole" underscores the exclusivity of the Tribunals jurisdiction over election contests
relating to their respective Members (Co v. Electoral Tribunal of the House of
Representatives, 199 SCRA 692 [1991]; Lazatin v. House of Representatives Electoral
Tribunal, 168 SCRA 391 [1988]; Angara v. Electoral Commission, 63 Phil. 139 [1936]).
It is therefore crystal clear that this Court has no jurisdiction to entertain the instant
petition. It is the Senate Electoral Tribunal which has exclusive jurisdiction to act on
the complaint of petitioner involving, as it does, contest relating to the election of a
member of the Senate. As aforesaid, petitioners proper recourse is to file a regular
election protest before the Senate Electoral Tribunal after the winning senatorial
candidates have been proclaimed.

3. ELECTION LAW; ELECTION CONTEST; PRE-PROCLAMATION CONTROVERSY; NOT
ALLOWED IN ELECTIONS FOR PRESIDENT, VICE-PRESIDENT, SENATORS AND MEMBERS OF
HOUSE OF REPRESENTATIVE. While the Commission has exclusive jurisdiction over
pre-proclamation controversies involving local elective officials (Sec. 242, Omnibus
Election Code), nevertheless, pre-proclamation cases are not allowed in elections for
President, Vice-President, Senator and Member of the House of Representatives as
provided in Sec. 15 of Republic Act 7166.

4. ID.; ID.; ID.; NOT A PROPER RECOURSE IN CASE OF ERRORS IN THE APPRECIATION OF
BALLOT; REASON THEREFOR. The function of ballots appreciation is performed by
the boards of election inspectors at the precinct level. "3. The scope of pre-
proclamation controversy is limited to the issues enumerated under Sec. 243 of the
Omnibus Election Code. The enumeration therein of the issues that may be raised in
pre-proclamation controversy is restrictive and exclusive. In the absence of any clear
showing or proof that the election returns canvassed are incomplete or contain
material defects (sec. 234), appear to have been tampered with, falsified or prepared
under duress (sec. 235) and/or contain discrepancies in the votes credited to any
candidate, the difference of which affects the result of the election (sec. 236), which
are the only instances where a pre-proclamation recount may be resorted to, granted
the preservation of the integrity of the ballot box and its contents, Sanchez petition
must fail. The complete election returns whose authenticity is not in question, must
be prima facie considered valid for the purpose of canvassing the same and
proclamation of the winning candidates. . . . "7. The ground for recount relied upon
by Sanchez is clearly not among the issues that may be raised in pre-proclamation
controversy. His allegation of invalidation of "Sanchez" votes intended for him bear no
relation to the correctness and authenticity of the election returns canvassed. Neither
the Constitution nor statute has granted the Comelec or the board of canvassers the
power in the canvass of election returns to look beyond the face thereof, once
satisfied of their authenticity (Abes v. Comelec, 21 SCRA 1252, 1256)."cralaw
virtua1aw library

5. ID.; ID.; CORRECTION OF MANIFEST ERROR IN THE CERTIFICATE OF CANVASS OR
ELECTION RETURNS; MAY BE ALLOWED IN ELECTION FOR PRESIDENT, VICE PRESIDENT,
SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVE. It is clear from the
above-quoted provision of the law that "pre-proclamation cases (are) not allowed in
elections for President, Vice-President, Senator and Member of the House of
Representatives." What is allowed is the correction of "manifest errors in the
certificate of canvass or election returns." To be manifest, the errors must appear on
the face of the certificates of canvass or election returns sought to be corrected
and/or objections thereto must have been made before the board of canvassers and
specifically noted in the minutes of their respective proceedings.

6. ID.; ID.; ID.; ID.; NOT SATISFIED IN CASE AT BAR. It is quite obvious that
petitioners prayer does not call for the correction of "manifest errors in the
certificate of canvass or election returns" before the Comelec but for the re-opening
of the ballot boxes and appreciation of the ballots contained therein. Indeed,
petitioner has not even pointed to any "manifest error" in the certificates of canvass
or election returns he desires to be rectified. There being none, petitioners proper
recourse is to file a regular election protest which, under the Constitution and the
Omnibus Election ode, exclusively pertains to the Senate Electoral Tribunal. In the
case at bar, petitioners allegation that "Chavez" votes were either invalidated or
declared stray has no relation to the correctness or authenticity of the election
returns canvassed. Otherwise stated, petitioner has not demonstrated any manifest
error in the certificates of canvass or election returns before the Comelec which
would warrant their correction. As the authenticity of the certificates of canvass or
election returns are not questioned, they must be prima facie considered valid for
purposes of canvassing the same and proclamation of the winning candidates (Sanchez
v. Comelec, supra)


R E S O L U T I O N


BIDIN, J.:


This case was originally on urgent petition ad cautelam praying, among others, for the
issuance of a temporary restraining order enjoining respondent Commission on
Elections (Comelec) from proclaiming the 24th highest senatorial candidate.

The antecedents facts are as follows:chanrob1es virtual 1aw library

On May 5, 1992, this Court issued a Resolution in GR No. 104704, entitled "Francisco
Chavez v. Comelec, Et Al.," disqualifying Melchor Chavez, private respondent therein,
from running for the Office of Senator in the May 11, 1992 elections.

The above-mentioned resolution was received by respondent Comelec on May 6, 1992.
On the same day, petitioner filed an urgent motion with the Comelec praying that it
(1) disseminate through the fastest available means this Courts Resolution dated May
5, 1992 to all regional election directors, provincial election supervisors, city and
municipal election registrars, boards of election inspectors, the six (6) accredited
political parties and the general public; and (2) order said election officials to delete
the name of Melchor Chavez as printed in the certified list of candidates tally sheets,
election returns and "to count all votes cast for the disqualified Melchor, Chavez in
favor of Francisco I. Chavez . . . ."cralaw virtua1aw library

On May 8, 1992, the Comelec issued Res. No. 92-1322 which resolved to delete the
name of Melchor Chavez from the list of qualified candidates. However, it failed to
order the crediting of all "Chavez" votes in favor of petitioner as well as the
cancellation of Melchor Chavez name in the list of qualified candidates.

According to petitioner, the Comelec failed to perform its mandatory function under
Sec. 7, RA 7166 which states that if a candidate has been disqualified, it shall be the
duty of the Commission to instruct without delay the deletion of the name of said
candidate.

Thus, the name of Melchor Chavez remained undeleted in the list of qualified
candidates on election day.chanrobles virtual lawlibrary

Confusion arose, allegedly nationwide, as the "Chavez" votes were either declared
stray or invalidated by the Boards of Election Inspectors (BEIs).

On May 11, 1992, Commissioner Rama of respondent Comelec issued a directive over
radio and TV ordering all "Chavez" votes to be credited in favor of petitioner.
Petitioner contends that the radio and TV announcements did not reach the BEI at the
170,354 precincts nationwide. As a result, "Chavez" votes were not credited in favor
of petitioner.

On May 12, 1992, Comelec issued another Resolution directing all municipal and city
election registrars throughout the country to examine the minutes of voting submitted
by the BEIs and to credit all the "Chavez" votes, which have been declared stray or
invalidated by the BEIs, in favor of petitioner.

Petitioner maintains that the said resolution proved futile because it did not reach all
the various BEIs of the 170,354 election precincts throughout the country on time for
implementation and that the minutes of voting did not indicate the number of
"Chavez" votes which were declared stray or invalidated.

On May 14, 1992, petitioner sent a letter to the Comelec requesting the latter to
devise ways and means in crediting "Chavez" votes in his favor but the respondent
Commission failed to act on said letter/complaint.

On May 23, 1992, petitioner filed an urgent petition before the respondent Comelec
praying the latter to (1) implement its May 12, 1992 resolution with costs de officio;
(2) to re-open the ballot boxes in 13 provinces including the National Capital Region
involving some 80,348 precincts (p. 9 of petition) and to scan for the "Chavez" votes
for purposes of crediting the same in his favor; (3) make the appropriate entries in
the election returns/certificates of canvass; and (4) to suspend the proclamation of
the 24 winning candidates.

Dissatisfied with the failure of respondent Comelec to act on his petition, petitioner
filed, as aforesaid, this urgent petition for prohibition and mandamus, with prayer for
the issuance of a temporary restraining order, enjoining the Comelec from
proclaiming the 24th highest senatorial candidate, without first implementing
respondent Comelecs resolution of May 12, 1992 and acting upon petitioners
letter/complaint dated May 14, 1992 and urgent petition dated May 22,
1992.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

It is the submission of petitioner that assuming only ten (10) "Chavez" votes were
invalidated per precinct, he would have lost at least 1.7 million votes (considering
that there are more than 170,000 precincts nationwide); the result of which will
affect the 24 ranking senatorial candidates.

Petitioner alleges that respondent Comelec acted capriciously and whimsically and
with grave abuse of discretion and therefore prays that the Comelec be enjoined from
proclaiming the 24th winning senatorial candidate until after his petition before the
Commission is resolved.

On June 4, 1992, the Court issued a Temporary Restraining Order enjoining
respondent Comelec from proclaiming the 24th winning senatorial candidate and set
the case for hearing on June 9, 1992.

On the same day (June 4, 1992), petitioner filed a manifestation stating that on May
30, 1992, his urgent petition dated May 22, 1992 was dismissed by respondent
Comelec and prayed that the petition ad cautelam at bar be considered a regular
petition.

On June 8, 1992, Senator Agapito Aquino ** filed a Motion for Leave to Intervene with
Comment in Intervention praying for the dismissal of the instant petition on the
ground that the law does not allow pre-proclamation controversy involving the
election of members of the Senate.

After hearing the arguments of the parties on June 9, 1992, the Court resolved to lift
the temporary restraining order in the afternoon of the same day (June 9, 1992).

Coming now to the merits, We find the petition devoid of any.

As stated earlier, petitioners urgent petition dated May 22, 1992 was dismissed by
respondent Comelec on May 30, 1992. Had it not been prayed that the proclamation
of the 24th winning senatorial candidate be suspended, which this Court granted on
June 4, 1992, the instant petition would have been dismissed outright for having
become moot and academic. But even then, this Court could have acted favorably on
petitioners plaint.

The alleged inaction of respondent Comelec in ordering the deletion of Melchor
Chavezs name in the list of qualified candidates does not call for the exercise of the
Courts function of judicial review. This Court can review the decisions or orders of
the Comelec only in cases of grave abuse of discretion committed by it in the
discharge of its quasi-judicial powers and not those arising from the exercise of its
administrative functions. Respondent Commissions alleged failure to implement its
own resolution is undoubtedly administrative in nature, hence, beyond judicial
interference (See Filipinas Engineering Co. v. Ferrer, 135 SCRA 25 [1985]; Aratuc v.
Commission on Elections, 88 SCRA 251 (1979); see also Pungutan v. Abubakar, 43 SCRA
1 [1972]). As aptly observed by the Solicitor General, respondent Comelec can
administratively undo what it has administratively left undone (Manifestation, p. 2).
Moreover, respondent Comelec has in fact, on May 6, 1992 to be exact, ordered the
deletion of Melchor Chavezs name not only on the official list of candidates, but also
on the election returns, tally sheet and certificate of canvass (Comment, p. 7).
Hence, petitioners allegation that respondent Comelec failed to implement Res. No.
92-132 does not hold water.

Be that as it may, there are other compelling reasons why the instant petition is
bound to fail.

A simple reading of the petition would readily show that petitioner has no cause of
action, the controversy presented being one in the nature of a pre-proclamation. **

While the Commission has exclusive jurisdiction over pre-proclamation controversies
involving local elective officials (Sec. 242, Omnibus Election Code), nevertheless, pre-
proclamation cases are not allowed in elections for President, Vice-President, Senator
and Member of the House of Representatives.chanrobles lawlibrary : rednad

Sec. 15 of Republic Act 7166 provides:jgc:chanrobles.com.ph

"Sec. 15. Pre-proclamation Cases Not Allowed in Elections for President, Vice-
President, Senator, and Member of the House of Representatives. For purposes of
the elections for President, Vice-President, Senator and Member of the House of
Representatives, no pre-proclamation cases shall be allowed on matters relating to
the preparation, transmission, receipt, custody and appreciation of the election
returns or the certificate of canvass, as the case may be. However, this does not
preclude the authority of the appropriate canvassing body motu propio or upon
written complaint of an interested person to correct manifest errors in the certificate
of canvass or election returns before it. (Emphasis supplied)
x x x


"Any objection on the election returns before the city or municipal board of
canvassers, or on the municipal certificates of canvass before the provincial boards of
canvassers or district board of canvassers in Metro Manila Area, shall be specifically
noted in the minutes of their respective proceedings."cralaw virtua1aw library

It is clear from the above-quoted provision of the law that "pre-proclamation cases
(are) not allowed in elections for President, Vice-President, Senator and Member of
the House of Representatives." What is allowed is the correction of "manifest errors in
the certificate of canvass or election returns." To be manifest, the errors must appear
on the face of the certificates of canvass or election returns sought to be corrected
and/or objections thereto must have been made before the board of canvassers and
specifically noted in the minutes of their respective proceedings.

In the case at bar, however, petitioner prays not only for a restraining order enjoining
"the proclamation of the 24th highest ranking senatorial candidate without first acting
upon petitioners letter/complaint dated May 14, 1992 and urgent petition dated May
22, 1992" but also prays that judgment be rendered requiring the Comelec to re-open
the ballot boxes in 80,348 precincts in 13 provinces therein enumerated (Petition, p.
9) including Metro Manila, scan the ballots for "Chavez" votes which were invalidated
or declared stray and credit said scanned "Chavez" votes in favor of petitioner.

It is quite obvious that petitioners prayer does not call for the correction of "manifest
errors in the certificates of canvass or election returns" before the Comelec but for
the re-opening of the ballot boxes and appreciation of the ballots contained therein.
Indeed, petitioner has not even pointed to any "manifest error" in the certificates of
canvass or election returns he desires to be rectified. There being none, petitioners
proper recourse is to file a regular election protest which, under the Constitution and
the Omnibus Election Code, exclusively pertains to the Senate Electoral Tribunal.

Thus, Sec. 17, Art. VI of the Constitution provides that" (t)he Senate and the House of
Representatives shall each have an Electoral Tribunal which shall be the sole judge of
all contests relating to the election, returns, and qualifications of their respective
Members. . . ." (Emphasis supplied). The word "sole" underscores the exclusivity of
the Tribunals jurisdiction over election contests relating to their respective Members
(Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692 [1991];
Lazatin v. House of Representatives Electoral Tribunal, 168 SCRA 391 [1988]; Angara
v. Electoral Commission, 63 Phil. 139 [1936]). It is therefore crystal clear that this
Court has no jurisdiction to entertain the instant petition. It is the Senate Electoral
Tribunal which has exclusive jurisdiction to act on the complaint of petitioner
involving, as it does, contest relating to the election of a member of the Senate. As
aforesaid, petitioners proper recourse is to file a regular election protest before the
Senate Electoral Tribunal after the winning senatorial candidates have been
proclaimed.

Petitioner argues, on the other hand, that a recount before the Senate Electoral
Tribunal where he would be forced to shell out the expenses imposes not only a
property requirement for the enjoyment of the right to be voted upon but also a price
on the right of suffrage which would ultimately stifle the sovereign will.

The argument, however, is beside the point. The law is very clear on the matter and
it is not right for petitioner to ask this Court to abandon settled jurisprudence,
engage in judicial legislation, amend the Constitution and alter the Omnibus Election
Code. The mandatory procedures laid down by the existing law in cases like the one
at bar must be faithfully followed lest we allow anarchy to reign. The proper recourse
is for petitioner to ask not this Court but the Legislature to enact remedial
measures.cralawnad

Finally, the instant petition falls squarely with the case of Sanchez v. Commission on
Elections (153 SCRA 67 [1987]) and the disposition arrived therein finds application in
the case at bar, mutatis mutandis:jgc:chanrobles.com.ph

"Sanchez anchors his petition for recount and/or reappreciation on Section 243,
paragraph (b) of the Omnibus Election Code in relation to Section 234 thereof with
regard to material defects in canvassed election returns. He contends that the
canvassed returns discarding "Sanchez" votes as stray were "incomplete" and therefore
warrant a recount or reappreciation of the ballots under Section 234. . . .

". . . The fact that some votes written solely as Sanchez" were declared stray votes
because of the inspectors erroneous belief that Gil Sanchez had not been disqualified
as a candidate, involves an erroneous appreciation of the ballots. It is established by
the law as well as jurisprudence . . . that errors in the appreciation of ballots by the
board of inspectors are proper subject for election protest and not for recount or
reappreciation of ballots.

"2. The appreciation of the ballots cast in the precincts is not a proceeding of the
board of canvassers for purposes of pre-proclamation proceedings under Section 241,
Omnibus Election Code, but of the boards of election inspectors who are called upon
to count and appreciate the votes in accordance with the rules of appreciation
provided in Section 211, Omnibus Election Code. Otherwise stated, the appreciation
of ballots is not part of the proceedings of the board of canvassers. The functions of
ballots appreciation is performed by the boards election inspectors at the precinct
level. (Emphasis supplied)

"3. The scope of pre-proclamation controversy is limited to the issues enumerated
under Sec. 243 of the Omnibus Election Code. The enumeration therein of the issues
that may be raised in pre-proclamation controversy is restrictive and exclusive. In the
absence of any clear showing or proof that the election returns canvassed are
incomplete or contain material defects (sec. 234), appear to have been tampered
with, falsified or prepared under duress (sec. 235) and/or contain discrepancies in the
votes credited to any candidate, the difference of which affects the result of the
election (sec. 236), which are the only instances where a pre-proclamation recount
may be resorted to, granted the preservation of the integrity of the ballot box and its
contents, Sanchez petition must fail. The complete election returns whose
authenticity is not in question, must be prima facie considered valid for the purpose
of canvassing the same and proclamation of the winning candidates.
x x x


"7. The ground for recount relied upon by Sanchez is clearly not among the issues that
may be raised in pre-proclamation controversy. His allegation of invalidation of
"Sanchez" votes intended for him bear no relation to the correctness and authenticity
of the election returns canvassed. Neither the Constitution nor statute has granted
the Comelec or the board of canvassers the power in the canvass of election returns
to look beyond the face thereof, once satisfied of their authenticity (Abes v.
Comelec, 21 SCRA 1252, 1256)."cralaw virtua1aw library

In the case at bar, petitioners allegation that "Chavez" votes were either invalidated
or declared stray has no relation to the correctness or authenticity of the election
returns canvassed. Otherwise stated, petitioner has not demonstrated any manifest
error in the certificates of canvass or election returns before the Comelec which
would warrant their correction. As the authenticity of the certificates of canvass or
election returns are not questioned, they must be prima facie considered valid for
purposes of canvassing the same and proclamation of the winning candidates (Sanchez
v. Comelec, supra).

Premises considered, the Court Resolved to DISMISS the instant petition for lack of
merit.

SO ORDERED.


EN BANC
[G.R. No. 124041. August 9, 1996]
SULTAN AMER BALINDONG, petitioner, vs. COMMISSION ON ELECTIONS and MAYOR
CABIB A. TANOG, respondents.
D E C I S I O N
MENDOZA, J.:
Petitioner Sultan Amer Balindong seeks to annul the resolution, dated June 26,
1995, of the Commission on Elections (COMELEC), dismissing his petition to annul the
proclamation of his opponent, herein private respondent Cabib A. Tanog, as mayor of
Pualas, Lanao del Sur, and the resolution, dated March 12, 1996, of the COMELEC en
banc, denying petitioners motion for reconsideration.
Petitioner and private respondent were candidates for municipal mayor of
Pualas, Lanao del Sur in the elections held on May 8, 1995. After the canvass, private
respondent Tanog was credited with 2,271 votes, while petitioner was credited with
2,122 votes. Tanog thus led by a margin of 149 votes.
On May 17, 1995, petitioner filed in the COMELEC a Petition to Suspend and/or
Annul Proclamation of respondent Cabib Tanog. He alleged that the polling place in
Precinct No. 4 had been transferred from Barangay Lumbac to Barangay Talambo,
both in the municipality of Pualas, without prior notice and hearing, with the result
that voters in Lumbac, who were his supporters, were not able to cast their
votes. Petitioner claimed that, over his objection, the Municipal Board of Canvassers
(MBC) proceeded with the canvass, including therein the election return from Precinct
No. 4.
On June 17, 1995, petitioner filed an Ex-Parte Motion to Set for Hearing and
Supplemental Petition (hereinafter referred to as Supplemental Petition). He alleged
that the election return from Precinct No. 4 was obviously manufactured and
therefore should have been excluded from the canvass, because of massive
substitute voting which could be established by a technical examination of the
signatures and thumbmarks affixed in the List of Voters (C.E. Form No. 2) and Voters
Affidavits (C.E. Form No. 1) of Precinct No. 4. Petitioner, therefore, prayed that a
technical examination of the signatures and thumbmarks in C.E. Forms No. 1 and 2 be
ordered.
Indeed, it appears that in the morning of the election day, the members of the
Board of Election Inspectors transferred the polling place of Precinct No. 4 from the
Lumbac Primary School at Barangay Lumbac to the Pualas Elementary School in
Barangay Talambo, on the ground that there was no existing public school or public
building in Lumbac and free elections could not be insured in that place. The
resolution of the Board of Election Inspectors transferring the polling place was signed
by the chairman, the poll clerk, and the member, as well as by the two watchers of
the candidates for mayor,
[1]
although it is now claimed that petitioners watchers
were intimidated to sign the resolution.
Petitioner charged that supporters of private respondent Tanog filled out the
ballots with the knowledge and approval of the members of the Board of Election
Inspectors who were relatives of Tanog, the chairman being the wife of a nephew of
Tanog and the poll clerk and member, his nieces. The two nieces in fact allegedly
lived in private respondents house. Petitioner filed a petition for the disqualification
of the members of the Board on May 7, 1995, but, apparently, because of its
proximity to the day of the election, it was not acted upon by the Office of the
Municipal Election Officer.
On May 15, 1995, petitioner objected to the inclusion in the canvass of the
election return from Precinct No. 4.
[2]
He submitted in support of his objection a
complaint-affidavit signed by 63 voters who allegedly were not able to cast their
votes during the election.
[3]
In that barangay, which he claimed is his bailiwick,
petitioner obtained 11 votes, while private respondent obtained 178, or 167 more
votes than petitioner.
Despite petitioners objection, the returns of Precinct No. 4 were included in the
canvass. As the final tally stood, Tanog received 2,271 votes, while Balindong, 2,122
votes. Tanog led by 149 votes. On May 16, 1995, he was proclaimed mayor of Pualas,
prompting petitioner to file a Petition to Suspend and/or Annul Proclamation and a
Supplemental Petition.
In its resolution dated June 26, 1996, the Second Division of the
COMELEC dismissed the Petition to Suspend/Annul Proclamation and the
Supplemental Petition for lack of merit, ruling that the grounds relied upon by the
petitioner were proper for an election protest rather than a pre-proclamation
controversy. The ruling was affirmed, on reconsideration, by the COMELEC en banc.
The COMELEC en banc held that the transfer of the polling place of Precinct No. 4
was illegal because it was made only by agreement of the watchers of the candidates
and the members of the Board of Election Inspectors, the District Officer of the DECS,
the Municipal Treasurer and an Election Officer, without notice and hearing and in
violation of the prohibition against transfers less than 45 days before a regular
election, as provided in 153-154 of the Omnibus Election Code (OEC). The
COMELEC, therefore, ordered its Law Department to investigate the matter and
determine the parties responsible for it.
The COMELEC held, however, that a failure of election could not be declared
because for such a declaration to be proper under 6 of the OEC, two conditions must
concur, namely, (1) that no voting has taken place in the precinct on the date fixed
by law or, even if there was voting, the election results in a failure to elect; and (2)
that the votes not cast would affect the result of the election.
[4]
The COMELEC ruled
that neither of these conditions existed in the case at bar, because the election
actually took place in Precinct No. 4 and, although it appeared that 66 voters were
not able to vote, their votes, even if counted in petitioners favor, could not
overcome private respondents margin of 149.
Hence, this petition for certiorari. Petitioner contends that the COMELEC gravely
abused its discretion in refusing to annul the results in Precinct No. 4 despite its
finding that the transfer of the polling place was not in accordance with law and to
order a technical examination of the signatures and thumbmarks in the List of Voters
and in the Voters Affidavits.
On March 19, 1996, we issued a temporary restraining order, ordering private
respondent to cease and desist from exercising the duties and functions of the Office
of the Mayor of Pualas, Lanao del Sur, until further orders from this Court. Upon
further consideration of the petition, in light of the comments separately filed by
respondents, it is now our opinion that petitioners remedy is not to seek the
annulment of private respondents proclamation but, if at all, to file an election
protest against private respondent.
First. The mere fact that the transfer of polling place was not made in
accordance with law does not warrant a declaration of failure of election and the
annulment of the proclamation of the winning candidate, unless the number of uncast
votes will affect the result of the election. Thus, in Co v. COMELEC,
[5]
we upheld the
transfer of polling places ordered by the Election Registrar four days before the
election, allegedly because the teachers, who were members of the Board of Election
Inspectors, were afraid of reported terrorists plans to disrupt the elections in the
affected areas. Only barangay captains in the areas were notified of the
change. Despite claims that the transfer of polling place was illegal, because it was
made in disregard of 152, 153, and 154 of the OEC, and that it had resulted in the
disfranchisement of 15,000 voters, we upheld the COMELEC in refusing to declare a
failure of election, it appearing that the disfranchised voters were only 2,978 and
represented only 22.6% of the entire electorate, and their votes would not affect the
result of the election even if they were counted.
In the case at bar, although the COMELEC declared the transfer of the polling
place to be illegal, the fact is that only 66, out of 255 registered voters in Precinct
No. 4, were not able to vote. Assuming that all the 63 signatures on the
affidavit
[6]
submitted by petitioner were authentic and that the 63 voters who signed
the complaint-affidavit would have voted for petitioner, their votes would increase
petitioners 2,122 votes to 2,185 only, which is still less than private respondents
total of 2,271 votes. The additional votes would not have materially affected the
results of the election so as to warrant a declaration of failure of election.
Second. It is contended that if a technical examination of the List of Voters and
the Voters Affidavits had been ordered, the COMELEC would have discovered massive
substitute voting which would convince it that indeed the election return from
Precinct No. 4 is obviously manufactured within the meaning of 243(c) of the
OEC. This contention is without merit. As we recently ruled in Loong v.
COMELEC,
[7]
as long as the returns appear to be authentic and duly accomplished on
their face, the Board of Canvassers cannot look beyond or behind them to verify
allegations of irregularities in the casting or the counting of the votes. Corollarily,
technical examination of voting paraphernalia involving analysis and comparison of
voters signatures and thumbprints thereon is prohibited in pre-proclamation cases
which are mandated by law to be expeditiously resolved without involving
evidencealiunde and examination of voluminous documents which take up much time
and cause delay in defeat of the public policy underlying the summary nature of pre-
proclamation controversies. If the technical examination of the Voters List and
Voters Affidavits was sustained in that case, it was because even before the
technical examination was conducted, the Commission already noted certain badges
of fraud just by looking at the election results of Parang, Sulu.
By contrast whether the election return in this case is manufactured is not
obvious, but would depend for its showing on an examination of C.E. Forms No. 1 and
2. Sec. 243(c), in relation to 242, in giving the COMELEC jurisdiction over pre-
proclamation controversies and allowing the suspension or annulment of any
proclamation, requires, if the basis of the controversy is that election returns are
manufactured, that this fact be obvious on the face of the returns.
[8]
Such would be
the case, for example, if all votes therein reported are cast in favor of a candidate or
candidates belonging to the same party,
[9]
or, if the results of the canvass are
statistically improbable.
[10]
In such a case, the results of the election would be
unascertainable, making it necessary to conduct a technical examination of the
Voters List and Voters Affidavits.
But in the case at bar, the results are not unascertainable. Petitioners allegation
of massive substitute voting as a result of the transfer of polling place has not been
proved. Consequently, his call for the examination of the Voters List and Voters
Affidavits is without any basis.
In Loong we also held:
While, however, the COMELEC is restricted, in pre-proclamation cases, to an
examination of the election returns on their face and is without jurisdiction to go
beyond or behind them and investigate election irregularities, the COMELEC is duty
bound to investigate allegations of fraud, terrorism, violence and other analogous
causes in actions for annulment of election results or for declaration of failure of
elections, as the Omnibus Election Code denominates the same. Thus, the COMELEC,
in the case of actions for annulment of election results or declaration of failure of
elections, may conduct technical examination of election documents and compare
and analyze voters signatures and fingerprints in order to determine whether or not
the elections had indeed been free, honest and clean. Needless to say, a pre-
proclamation controversy is not the same as an action for annulment of election
results or declaration of failure of elections.
Here, there were mere rumors that the ballots had been filled out by private
respondents supporters, but there was no evidence shown to support the claim. Not
a single witness had first hand knowledge of actual fraud, terrorism, violence or
force majeure that attended the election.
Indeed, what petitioner wants is a technical examination of the signatures so that
he can prove fraud. Petitioner must find his own evidence rather than fish for it in
this manner. To allow election documents to be examined on a mere hunch or at the
whim of a losing candidate without any factual basis would be to allow him to trifle
with the will of the people.
The COMELEC thus correctly denied petitioners motion for technical examination
of the Voters Lists and Voters Affidavits (C.E. Form Nos. 1 & 2).
Third. Petitioners remedy is to raise the issues he seeks to ventilate in this case
in an election protest before the Regional Trial Court. He can there show if the
illegality of the transfer of the polling place, as determined by the COMELEC, in any
way affected the result of the voting in the precint and ultimately the result of the
election in Pualas, Lanao del Sur. The records show that he filed two pre-
proclamation controversies before private respondent was proclaimed as mayor on
May 16, 1995. The second of these petitions, which was filed on May 15, 1995,
questioned the validity of the returns from Precinct No. 4 on the ground that they
were falsified, obviously manufactured and prepared under duress, threats, coercion
and intimidation. As his petition was not acted upon by the Municipal Board of
Canvassers, he filed a petition for the annulment of private respondents
proclamation in the COMELEC. Pursuant to 248 of the OEC, the filing of this case for
suspension or annulment of the proclamation of Tanog suspended the running of the
period for filing an election protest.
WHEREFORE, the petition is DISMISSED. The temporary restraining order issued on
March 19, 1996 is LIFTED effective immediately.
SO ORDERED.

EN BANC

G.R. No. 123230 April 18, 1997
NORODIN M. MATALAM, petitioner,
vs.
COMMISSION ON ELECTIONS and ZACARIA A. CANDAO, respondents.

PANGANIBAN, J.:
Law and jurisprudence mandate that pre-proclamation controversies should be
resolved in summary proceedings; thus, the Comelec and the Boards of Canvassers, in
resolving these disputes, need not look beyond the face of the election returns. So
too, petitioner must show that the exclusion of the contested returns will materially
change the standing of the aggrieved parties. In the case at bench, the Court affirms
once again these well-entrenched doctrines in our legal system.
This petition for certiorari under Rule 65 of the Rules of Court assails the
Resolution
1
dated August 24, 1995 of the Commission on Elections (Comelec), Second
Division, in the consolidated cases of SPC No. 95-029, SPC No. 95-279, SPC No. 95-185
and SPC No. 95-291, the dispositive portion of which states:
WHEREFORE, premises considered, that the Commission on Elections
(Second Division) resolves to DISMISS the appeals and AFFIRM the rulings
of the Provincial Board of Canvassers. The proclamation of respondent
Candao as Governor of the Province of Maguindanao earlier set aside and
declared null and void is hereby reconsidered and ordered revived.
2

Also assailed herein is the Comelec en banc Resolution
3
dated January 16, 1996
denying the motion for reconsideration, to wit:
In keeping with the ruling of the Supreme Court in Alfonso
vs. Commission on Elections, 232 SCRA 777, that, "It is a matter of public
policy that pre-proclamation controversies shall be resolved in summary
proceedings," and it appearing that the instant motion for
reconsideration is without merit and does not offer much in terms of
new issues or substantial matters to warrant the reversal or setting aside
of the questioned Resolution of the Second Division, the Commission En
BancRESOLVES to DENY the Motion for Reconsideration. Accordingly, the
resolution of the Second Division is hereby AFFIRMED.
The Motion filed subsequently on September 6, 1995 by herein
petitioners-movants for technical examination of CE Forms 1 and 2 of
the Municipality of Maganoy, Maguindanao is likewise hereby DENIED for
having become moot and academic.
4

In its assailed Resolutions, Public Respondent Comelec disposed of the following four
cases:
5

1. SPC Case No. 95-029, initiated by the local candidates from the
Municipality of Maganoy, Maguindanao, seeking to nullify the election
results in and the consequent proclamation of the candidates in said
municipality. Petitioner Norodin Matalam filed a petition for
intervention, contending that the election returns in the said
municipality were falsified, fabricated and manufactured.
2. SPC Case No. 95-185, filed by Petitioner Matalam to enjoin the
Provincial Board of Canvassers of Maguindanao from tabulating the
certificate of canvass from Maganoy, Maguindanao;
3. SPC No. 95-279, filed also by Petitioner Matalam to set aside the
proceedings of the Municipal Board of Canvassers of Datu Piang,
Maguindanao;
4. SPC No. 95-291, filed by Petitioner Matalam to exclude the
certificates of canvass from the Municipality of Datu Piang.
The Facts
Petitioner Norodin M. Matalam and Private Respondent Zacaria A. Candao were both
candidates for Governor of the Province of Maguindanao in the May 8, 1995 elections.
During the canvass of the election returns in the municipalities of Datu Piang and
Maganoy, both in the Province of Maguindanao, Petitioner Matalam challenged before
the respective Municipal Boards of Canvassers ("MBC") the authenticity of the election
returns in said towns. Because the MBC merely noted his objections, petitioner
reiterated the same before the Provincial Board of Canvassers ("PBC"). In those two
municipalities, petitioner was credited with only 3,641 votes, while private
respondent received 44,654 votes. It is the contention of petitioner that the exclusion
of the results is enough to overhaul the lead of Candao.
6

Because the Provincial Board of Canvassers rejected the pleas of petitioner and
included the challenged certificates of canvass for Datu Piang and Maganoy in the
provincial canvass, petitioner filed the above-mentioned petitions before the
Comelec.
During the pendency of the said petitions, the Provincial Board of Canvassers on June
30, 1995 proclaimed Respondent Candao as the duly elected governor of
Maguindanao.
Citing Section 20 (1) of Republic Act No. 7166 which requires that proclamations of
winning candidates during the pendency of an appeal or petition should be authorized
by the Comelec, the Second Division of Respondent Commission subsequently nullified
on July 11, 1995 the said proclamation of Candao.
On August 24, 1995, as earlier stated, the Comelec Second Division denied, via the
assailed Resolution, the petitions questioning the proceedings in the Municipal and
Provincial Boards of Canvassers and, at the same time, reinstated the proclamation of
Respondent Candao. The Comelec held that "in the absence of a strong evidence
establishing the spuriousness of the returns, the basic rule that the election returns
shall be accordedprima facie status as bona fide reports of the results of the count of
the votes for canvassing and proclamation purposes must perforce prevail."
7

Petitioner filed a motion for reconsideration. Subsequently, he also filed a motion for
technical examination of the signatures and thumbmarks of the registered voters of
Maganoy appearing in the Voter's Affidavit and the List of Voters (CE Forms 1 and 2,
respectively) for the purpose of proving that no election was conducted therein.
On January 16, 1996, the Comelec en banc denied the motions for reconsideration and
technical examination. Hence, this petition for certiorari, praying for the following
reliefs:
a) upon filing of this petition, a restraining order be issued enjoining the
execution and implementation of the resolutions of August 24, 1995 and
January 16, 1996 until further orders by the Honorable Court upon such
bond as may be required;
8

b) after due hearing, the resolutions of August 24, 1995 and January 16,
1996 be reversed and set aside;
c) that the proclamation of the private respondent Candao be declared
null and void;
d) that the certificates of canvass of Datu Piang and Maganoy be ordered
excluded in the canvassing by the Provincial Board of Canvassers of
Maguindanao;
e) that the petitioner Gov. Norodin Matalam be ordered proclaimed by
the Provincial Board of Canvassers of Maguindanao as the duly elected
governor in the May 8, 1995 elections;
f) in the alternative, the Comelec be ordered to conduct a technical
examination of CE Forms 1 and 2 of Maganoy, Maguindanao used in the
May 8, 1995 elections, and thereafter, the certificate of canvass of
Maganoy be ordered excluded and petitioner be ordered proclaimed as
the duly elected governor of Maguindanao.
9

In his memorandum, petitioner added the following prayer:
7. Or as a second alternative, after the technical examination, a Special
Election be conducted in Datu Piang and Maganoy, in the event only that
the Hon. Court will not order the proclamation of the winner on the
basis of the remaining MBC Certificates of Canvass of the 18 towns of
Maguindanao including the results of the Special Elections of May 27,
1995 in 5 precincts of Datu Piang and 6 precincts of Maganoy.
10

The Issue
Petitioner contends that the election returns of Datu Piang were falsified and
spurious, because they were prepared notwithstanding the alleged failure to count all
the ballots therein. Petitioner asserts that the counting of votes for 165 precincts
inside the old Municipal Building was disrupted and cut short by grenade explosions
which allegedly resulted in chaos and pandemonium. In describing the aftermath of
the incident, petitioner cites the report of Election Officer E.J. Klar of Datu Piang, to
wit:
1. Only 3 precincts have complete documents including tally boards duly
accomplished by the BEIs;
2. Some boxes only contained detached stubs;
3. Some boxes or majority of the boxes not sealed nor padlocked;
4. Counted and uncounted ballots were mixed together inside the ballot
boxes;
5. . . . the tally boards were also scattered all around the Treasurer's
Office.
6. Only 39 precincts received their election returns and these were also
missing;
7. There are BEIs who also brought their tally board to their house;
8. Some BEIs cannot be found or refused to appear;
So we can begin the transferring from the tally board to the election
return after the matching.
I'll just send you my report next time.
11

Relying on the dissenting opinion of Commissioner Regalado E. Maambong, petitioner
points out that Section 212 of the Omnibus Election Code requires that the
preparation of election returns must be simultaneous with the counting of ballots.
Petitioner further contends that the election returns and certificates of canvass for
the Municipality of Maganoy were falsified and spurious, as no election was actually
conducted therein. The results reflected in the Statement of Votes (SOV) by precinct
were allegedly farcical, with Petitioner Matalam and his congressional candidate
receiving one or no vote at all in a number of precincts, while Candao and his
congressional candidate were credited with all the votes cast therein. In some
precincts, the number of votes received by Candao even exceeded the number of
registered voters.
12

Petitioner also alleges that the SOV by precinct, the "Municipal Certificate of Canvass
and the proclamation papers of Maganoy" were signed in blank a day before the
elections, as evinced by the sworn statement of the Municipal Treasurer and
concurrent Vice-Chairperson of the MBC. Also presented was a certification from the
Maganoy Election Officer that only two barangays received ballot boxes and election
paraphernalia. Furthermore, joint affidavits were presented by barangay captains and
officials declaring that the Boards of Election Inspectors failed to report for duty in
their respective polling precincts on election day.
In view of these, petitioner argues that the Comelec should have granted the motion
for technical examination to determine whether the signatures and thumbmarks
affixed in CE Forms 1 and 2 belong to the voters therein, as it had done motu
proprio in SPA No. 95-284 involving the Municipality of Parang, Sulu.
Private Respondent Candao vigorously denies the contentions that no counting of
votes was conducted in Datu Piang
13
and that no election was held at all in Maganoy.
He rebuts the respective statements of the Maganoy Municipal Treasurer and the
Municipal Election Officer that there were no elections in the said municipality in May
1995, pointing to their earlier joint affidavit declaring the elections in Maganoy as
free, orderly and peaceful. Candao argues further that the receipt of zero vote by
some candidates for public office does not necessarily make the returns statistically
improbable.
The public respondent, in its comment, contends principally that the allegations in
the petition are insufficient to warrant the issuance of the writ of certiorari. The
resolution of the present issue of fraud is within the powers of public respondent, the
findings of which deserve great credence, in the absence of compelling evidence of a
clear and arbitrary abuse.
14
Public respondent suggests that the proper recourse of
private respondent is an election protest.
15

The ultimate issue posed is whether the questioned election returns for the
municipalities of Maganoy and Datu Piang could be the proper subjects of a pre-
proclamation controversy and, corollarily, whether said returns should be excluded
from the canvass.
The Court's Ruling
The petition is not meritorious.
May the Comelec in a Pre-Proclamation
Case Go Beyond the Face of the Election Returns?
The Omnibus Election Code defines a pre-proclamation controversy as "any question
pertaining to or affecting the proceedings of the board of canvassers which may be
raised by any candidate or by any registered political party or coalition of political
parties before the board or directly with the Commission, or any matter raised under
Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt,
custody and appreciation of the election returns."
16

Section 243 of the same Code enumerates the issues that may be raised in a pre-
proclamation controversy, to wit:
Sec. 243. Issues that may be raised in pre-proclamation controversy.
The following shall be proper issues that may be raised in a pre-
proclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material
defects, appear to be tampered with or falsified, or contain
discrepancies in the same returns or in other authentic copies thereof as
mentioned in Sections 233, 234, 235, and 236 of this Code;
(c) The election returns were prepared under duress, threats, coercion,
or intimidation, or they are obviously manufactured or not authentic;
and
(d) When substitute or fraudulent returns in controverted polling places
were canvassed, the results of which materially affected the standing of
the aggrieved candidate or candidates.
Stressing that the said enumeration is restrictive and exclusive, the Court in Sanchez
vs. Commission on Elections
17
held that:
The scope of pre-proclamation controversy is limited to issues
enumerated under Section 243 of the Omnibus Election Code. The
enumeration therein of the issues that may be raised in pre-
proclamation controversy, is restrictive and exclusive. In the absence of
any clear showing or proof that the election returns canvassed are
incomplete or contain material defects (sec. 234), appear to have been
tampered with, falsified or prepared under duress (sec. 235) and/or
contain discrepancies in the votes credited to any candidate, the
difference of which affects the result of the election (sec. 236), which
are the only instances where a pre-proclamation recount may be
resorted to, granted the preservation of the integrity of the ballot box
and its contents, Sanchez' petition must fail.
18

In an obvious attempt to satisfy the restrictive requirements of Sec. 243 and Sanchez,
the petitioner claims that the election returns were "spurious and obviously
manufactured,"
19
and "prepared under irregular circumstances." In this light,
petitioner characterizes the present case as a pre-proclamation
controversy.
20

In seeking to prove his characterization, however, petitioner does not claim that the
election returns are "incomplete, contain material defects, appear to be tampered
with or falsified, or contain discrepancies . . ." whichirregularities appear on their
face; or ". . . were prepared under duress, threats, coercion, or intimidation or they
are obviously manufactured or not authentic." Neither has he denounced as "illegal"
the composition or proceedings of the board of canvassers. Rather, he maintains that
there were irregularities aliunde, e.g., (a) the counting of votes in Datu Piang was not
completed; (b) no election was conducted in Maganoy; and (c) grenade explosions
marred the counting of votes in Datu Piang.
That the election returns were obviously manufactured must be evident from the face
of the said documents themselves.
21
In a pre-proclamation controversy, the Comelec,
as a rule, is restricted to an examination of the election returns and is without
jurisdiction to go beyond or behind them and investigate election irregularities.
Indeed, in the recent case of Loong vs. Comelec,
22
the Court, through Mr. Justice
Regino, Hermosisima, Jr., declared that "the prevailing doctrine in this jurisdiction . .
. is that as long as the returns appear to be authentic and duly accomplished on their
face, the Board of Canvassers cannot look beyond or behind them to verify
allegations of irregularities in the casting or the counting of the votes."
23
(Emphasis
supplied.)
Justifying the circumscribed scope of pre-proclamation controversies, Loong cited the
earlier ruling of the Court inDipatuan vs. Comelec
24
and held:
The policy consideration underlying the delimitation both of substantive
ground and procedure is the policy to determine as quickly as possible
the result of the election on the basis of the canvass. Thus, in the case
of Dipatuan vs. Commission on Election, we categorically ruled that in a
pre-proclamation controversy. Comelec is not to look beyond or behind
election returns which are on their face regular and authentic returns. A
party seeking to raise issues resolution of which would compel or
necessitate COMELEC to pierce the veil of election returns which
appear prima facie regular on their face, has his proper remedy in a
regular election protest. By their very nature, and given the obvious
public interest in the speedy determination of the results of elections,
pre-proclamation controversies are to be resolved in summary
proceedings without the need to present evidence aliunde and certainly
without having to go through voluminous documents and subjecting them
to meticulous technical examinations which take up considerable
time.
25
(Emphasis supplied.)
The petition must fail because it effectively implores the Court to disregard the
statutory norm that pre-proclamation controversies are to be resolved in a summary
proceeding. He asks the Court to ignore the fact that the election returns appear
regular on their face, and instead to determine whether fraud or irregularities
attended the election process. Because what he is asking for necessarily postulates a
full reception of evidence aliundeand the meticulous examination of voluminous
election documents, it is clearly anathema to a pre-proclamation controversy which,
by its very nature, is to be heard summarily and decided on as promptly as
possible.
26
A party seeking to raise issues the resolution of which would compel or
necessitate the Comelec to pierce the veil of election returns which appear prima
facie regular on their face, has his proper remedy in a regular election protest,
wherein the parties may litigate all the legal and factual issues raised by them in as
much detail as they may deem necessary or appropriate.
27

The public interest that animates the rule requiring summary resolution of pre-
proclamation controversies was previously explained by the Court thus:
The public policy involved in the rule that pre-proclamation
controversies shall be resolved in summary proceedings, is very real and
insistent. The public interest requires that the position for the filling of
which the election was held should be filled as promptly as possible,
even if the proclamation of the winning candidates should be provisional
in nature, in the sense that such would be subject to the results of the
election protest or protests that may be expected to be filed. The Court
is bound by high duty and responsibility to give effect to this public
policy which is enshrined in statutory norms.
28

In the present case, petitioner clearly asks too much, for he wants the Comelec and
the Court to look beyond the face of the documents, contrary to the clear mandate
of Loong.
Technical Examination Not Proper
in a Pre-Proclamation Controversy
Petitioner also prays for a technical examination of CE Forms 1 and 2. Again, a
technical examination runs counter to the nature and scope of a pre-proclamation
controversy. In Dimaporo vs. Comelec,
29
the Court denied a similar supplication for
the reexamination of Dianalan vs. Comelec
30
in order to allow a technical
examination of the handwriting and fingerprints in the voter's affidavits and voting
lists. In Dimaporo, the Court held:
Petitioners ask the Court to re-examine its decision in Dianalan
v. Commission on Elections, so as to permit petitioners to subject to
handwriting and fingerprint examination the voter's affidavits and voting
lists and other voting records in the contested precincts. We are not
persuaded by petitioners' arguments on this point. It is important to bear
in mind that the nature, scope and ambit of a pre-proclamation
controversy as set out in Dianalan andDipatuan and the other cases
there cited are determined by statutory provisions: Section 243 (entitled
"Issues that may be Raised in Pre-Proclamation Controversy"), 245
("Contested Election Returns") and 246 ("Summary Proceedings before
the Commission") of the Omnibus Election Code. As pointed out above
in Dipatuan, these statutory provisions reflect a very definite view of
what public policy requires on the matter. It may well be true that
public policy may occasionally permit the occurrence of "grab the
proclamation and prolong the protest" situations; that public policy,
however, balances the possibility of such situations against the
shortening of the period during which no winners are proclaimed, a
period commonly fraught with tension and danger for the public at
large. For those who disagree with that public policy, the appropriate
recourse is not to ask this Court to abandon case law which merely
interprets faithfully existing statutory norms, to engage in judicial
legislation and in effect to rewrite portions of the Omnibus Election
Code. The appropriate recourse is, of course, to the Legislative
Department of the Government and to ask that Department to strike a
new and different equilibrium in the balancing of the public interests at
stake.
31

It is interesting to note that the counsel who prayed for technical examination
in Dimaporo is "Pedro Q. Quadra,"
32
while the counsel for petitioner in this case who
now makes the same request is "Pete Quirino-Quadra."
33

In support of his prayer for a technical examination, petitioner also cites the Comelec
ruling in SPA No. 95-284, in which the Comelec ordered a similar technical
examination in Parang, Sulu.
It is well to stress that SPA No. 95-284, which was the subject in Loong
vs. Comelec
34
recently decided by the Court, involved a petition to annul the
election results or to declare a failure of election, an action which is different from
the present pre-proclamation controversy.
35
Loong distinguished between the two
actions, thus:
While, however, the Comelec is restricted, in pre-proclamation cases, to
an examination of the election returns on their face and is without
jurisdiction to go beyond or behind them and investigate election
irregularities, the Comelec is duty bound to investigate allegations of
fraud, terrorism, violence, and other analogous causes in actions for
annulment of election results or for declaration of failure of elections,
as the Omnibus Election Code denominates the same. Thus, the
Comelec, in the case of actions for annulment of election results or
declaration of failure of elections, may conduct technical examination of
election documents and compare and analyze voters' signatures and
fingerprints in order to determine whether or not the elections had
indeed been free, honest and clean. Needless to say, a pre-proclamation
controversy is not the same as an action for annulment of election
results or declaration of failure of elections.
36

Presumption That Election Returns
Are Valid Not Overcome
Petitioner Matalam contends that the presumption of regularity of the election
returns for Datu Piang and Maganoy had been overcome by his "overwhelming
evidence," as presented principally by the Klar Report. We cannot sustain this view.
The Comelec evaluated the evidence presented by the parties, and its conclusion is
contrary to petitioner's. The Comelec held that "in the absence of a strong evidence
establishing spuriousness of the returns, the basic rule that the election returns shall
be accorded prima facie status as bona fide reports of the results of the count of the
votes for canvassing and proclamation purposes must perforce prevail."
37
There
appears no reason for the Court to disturb this factual finding of the Comelec.
It is axiomatic that factual findings of administrative agencies which have acquired
expertise in their field are binding and conclusive on the Court. An application
for certiorari against actions of the Comelec is confined to instances of grave abuse of
discretion amounting to patent and substantial denial of due process, considering that
the Comelec is presumed to be most competent in matters falling within its
domain.
38

At the outset, it is already clear that, as a rule, there is no necessity for the Comelec
to examine in a pre-proclamation controversy allegations of irregularity that had
allegedly attended the preparation of election returns which, however, do not appear
on the face of the said documents. We hold, just the same, that the Comelec has not
committed a grave abuse of discretion in ruling that petitioner had failed to present
strong evidence sufficient to overcome the presumption that the election returns and
the certificates of canvass were valid.
In respect of the election returns of Datu Piang, the Comelec relied on the following
report of Atty. Jose Beltran, Provincial Election Supervisor of Maguindanao (and
disregarded the aforequoted Report of E.J. Klar which, on the other hand, petitioner
cited):
xxx xxx xxx
The elections in Datu Piang, Maguindanao on May 8, 1995, was initially
held in a peaceful and orderly manner;
From the distribution of the ballot boxes, election documents and other
election paraphernalia in the morning of May 8, 1995, up to the opening
of the precincts and actual casting of votes, no untoward incident was
reported by the Acting Election Officer Eliza Gasmin;
The counting of votes as agreed upon by the contending mayoralty
candidates was centralized in the old Municipal townhall;
The counting of votes started simultaneously at about seven o'clock in
the evening and as reported by Election Officer Gasmin, almost all of the
Boards of Election Inspectors completed their counting;
At about 10:30 that same evening when the Board of Election Inspectors
were preparing their election returns, grenade explosion occurred and
there was pandemonium in the canvassing hall. The Boards of Election
Inspectors scampered to safety leaving their ballot boxes and election
materials behind. One person was killed and scores of other persons
were wounded.
The following day, Election Inspector Gasmin with the help of her staff
and Treasury personnel, gathered the ballot boxes and other election
materials and kept them in the Treasurer's Office;
The Treasurer's Office and its premises were cordoned by military
authorities and no one was allowed inside the Treasurer's Office.
Election Officer Gasmin reported this incident to the Provincial Election
Supervisor.
The Provincial Supervisor immediately invited to a conference the
contending parties and it was agreed upon by and among themselves
that an inventory and segregation of the ballot boxes and documents be
done before any counting and canvassing be made.
Election Officer Gasmin failed to recall the different Board of Election
Inspectors. The BEI refused to serve if the venue of the counting and/or
canvassing is not transferred to a safer place.
A new acting Election Officer in the person of Election Officer Eleuterio
Klar was designated. Mr. Klar was able to convince the contending
parties to transfer to Cotabato City.
On May 26, 1995, the transfer was effected, sorting and inventory were
undertaken and after that the counting resumed.
On June 3, 1995, while counting was being completed a grenade
explosion inside the gymnasium in Cotabato City occurred. One soldier
was wounded.
On June 5, 1995, partial proclamation was done by the Municipal Board
of Canvassers for the position of Mayor, Vice-mayor and three
Councilors. On June 6, 1995, proclamation of 3 additional councilors was
made.
To summarize, the conduct of election in Datu Piang was peaceful and
orderly until a trend of the winning mayoralty candidate was established
at about 10:30 p.m. on election day.
39
(Emphasis supplied.)
We note that almost all of the Boards of Election Inspectors had completed the
counting of votes when the grenade explosions disrupted the proceedings. Moreover,
as soon as it was safe to do so, the election officials took steps to safeguard the
election documents by gathering and keeping them in the Treasurer's Office, under
constant watch of military authorities that had cordoned off the area.
Thereafter, with the agreement of the parties, an inventory of election documents
was conducted and the counting was continued on June 3, 1995. Although the
counting was again marred by a grenade explosion, the winning candidates were
proclaimed on June 5, 1995 and on June 6, 1995. There have been no allegations that
the election documents had been tampered with, substituted, manufactured or in any
way compromised by reason alone of the disruption in the proceedings. Neither does
petitioner allege that the election returns are irregular on their face. Under the
circumstances, we find no sufficient reason to hold that the election officials, amidst
trying conditions, had not adequately safeguarded the sanctity of the election process
or preserved the documents used therein. We find it difficult to ascribe substance to
the prayer for the wholesale exclusion of all of said election returns in Datu Piang.
Petitioner also asks for the exclusion of all the election returns and the certificates of
canvass in Maganoy on the ground that no election was actually conducted in said
town. This allegation lacks sufficient factual basis.
Petitioner relied on the sworn statement dated July 11, 1995 of Daud K. Dimapalao,
the Municipal Treasurer and Vice-Chairman of the Municipal Board of Canvassers of
Maganoy, Maguindanao that "there was never any election in Maganoy, Maguindanao
and I myself when I went to Maguindanao National High School, Poblacion, Maganoy,
in order to vote, there was no precinct established thereat open for election and I am
one of those who failed to cast a vote."
40

We find, however, that Dimapalao himself executed an earlier and contrary statement
dated May 13, 1995 not only admitting that elections were actually conducted in
Maganoy, but certifying as well that these were free, orderly and
peaceful.
41
Furthermore, the election officer himself, Abas Saga, reiterated in his
affidavit dated June 30, 1995 the peaceful and lawful conduct of the elections.
42
In
view of the inconsistent statements of the municipal treasurer, the Comelec cannot
be faulted for not giving credence thereto and relying instead on the positive
statement of the election officer in that locale, whose primary function is to oversee
the enforcement of election laws.
All in all, we cannot ascribe grave abuse of discretion amounting to lack or excess of
jurisdiction against the Comelec for granting prima facie status of validity to the
election returns of Datu Piang and Maganoy, for the purpose of resolving the pre-
proclamation controversy.
It is well to stress that the Court here merely sustains the Comelec position that the
challenged election returns are prima facie regular on their case and may be validly
included in the challenged certificates of canvass. The Court is not ruling that fraud
or terrorism or other irregularities aliunde had or had not attended the elections in
Maguindanao. This is NOT in issue in a pre-proclamation controversy such as the one
before us. This is to be resolved ultimately in a proper electoral protest after the
appreciation of sufficient credible evidence.
Statistical Improbability
Petitioner also argues that the results reflected in various election returns of Maganoy
were statistically improbable. He identifies several precincts where Candao and his
running mate received the same number of votes, while petitioner and his running
mate uniformly received zero. In some other precincts, Candao's total even exceeded
the number of registered voters. In 20 precincts, Candao and Datumanong were
credited with the same number of votes while Matalam and Mentang were credited
with few scattered votes.
43
Petitioner's argument is based on Lagumbay
vs. Comelec
44
in which the Court invalidated several election returns as evidently
fraudulent and statistically improbable because all the eight senatorial candidates of
one party garnered all the votes, while all the eight candidates of the other party got
nothing.
However, there is a cogent reason why the exclusion of the allegedly statistically
improbable election returns cannot be ruled upon. Even if we assume arguendo that
the said election returns for Maganoy were in fact statistically improbable, this alone
cannot warrant petitioner's proclamation. Contrary to the requirement of Section 243
(d) of the Omnibus Election Code,
45
petitioner has failed to demonstrate that the
results reflected in the allegedly "statistically improbable" returns for the Municipality
of Maganoy alone would materially affect the results of the gubernatorial contest.
Petitioner merely stated that the nullification of all the returns for both
municipalities of Datu Piang and Maganoy would overhaul the lead of Private
Respondent Candao. Although petitioner alleged the number of votes received by the
parties from each of the two municipalities, he has not shown, as earlier
observed,
46
their respective vote totals by precincts and/or by towns for the entire
Province of Maguindanao. In view of this, petitioner has utterly failed to persuade the
Court that the nullification of some or even all of the returns from the Municipality of
Maganoy alone would materially affect the standing of the parties,i.e., that petitioner
would win the canvass. In his motion for reconsideration dated August 25, 1995 before
the Respondent Comelec,
47
Petitioner Matalam contended that the "alleged result of
the canvassing of the certificates of canvass (for the entire province) are as follows:
Candao 157,844
Matalam 119,445
(that) (t)he alleged results of Maganoy and Datu Piang are as follows:
Municipality Candao Matalam
Maganoy 30,605 146
Datu Piang 14,049 3,495

Totals 44,654 3,641
(and that) (w)ith the exclusion of Maganoy and Datu Piang, the results are as
follows:
Matalam 115,804
Candao 113,190."
An analysis of the above figures supplied by petitioner will show (1) that the
exclusion of all the elections returns in the two towns
involved, taken together would be necessary to enable petitioner to win; and
(2) that the exclusion of the alleged statistically improbable returns, in fact, of
even all the returns in the town of Maganoy alone would not result in
petitioner's victory and proclamation. In short, the rejection of such returns
from Maganoy would not alter the election results: Candao would still win.
In Dimaporo, the Court did not rule on a similar allegation of statistically improbable
election returns, as the nullification thereof would not have materially affected the
election results. In this light, petitioner has not given the Court sufficient reason to
consider his prayer for the nullification of the Maganoy election returns even if we
agree to uphold his plea of "statistical improbability."
Epilogue
As already adverted to, both law (principally Sec. 243 of the Omnibus Election Code)
and extant jurisprudence restrict the grounds that may be invoked to nullify election
returns in a pre-proclamation controversy. Aside from the public interest
48
that
impels the prompt disposition of these cases, there is another substantial not just
technical reason why such grounds are limited and why election irregularities in
general cannot be the subjects of pre-proclamation suits. The boards of canvassers,
particularly municipal and provincial, before whom such pre-proclamation
controversies are initiated through timely objections by the parties during the
canvass, aread hoc bodies that exist only for the interim task of canvassing election
returns. They do not have the facilities, the time and even the competence to hear,
examine and decide on alleged election irregularities,
49
unlike regular courts or the
Comelec itself or the electoral tribunals (Presidential, Senate, and House) which are
regular agencies of government tasked and equipped for the purpose. While this Court
has time and again expressed its abhorrence for the nefarious "grab, the proclamation
and prolong the protest" strategy of some candidates, nonetheless, it recognizes the
very limited jurisdiction of municipal and provincial boards of canvassers. Unless the
petitioners can show cogently and clearly their entitlement to the summary exclusion
of clearly unacceptable election returns, this Court will always uphold the
constitutional and legal presumption of regularity in the performance of official
functions, and authenticity of official documents. And because the Court is not a trier
of facts, it will have to rely, absent any clear showing of grave abuse of discretion, on
the factual findings of the Commission on Elections the authority tasked by the
Constitution to administer and enforce election laws.
In the present case, the Court notes the passion, energy and vigor with which
petitioner and his counsel have pleaded their cause. But, while they may have
presented enough allegations to warrant an election protest, they have failed to
satisfy the very restrictive grounds required in a pre-proclamation controversy.
The Court agonized over its inability to fully look into the election irregularities
alleged by petitioner, due to the very limited scope of a pre-proclamation
controversy. Thus, the Court reminds lawyers handling election cases to make a
careful choice of remedies. Where it becomes apparent that a pre-proclamation suit
is inadequate, they should immediately choose another timely remedy, like a petition
to annul the election results or to declare a failure of elections or even an election
protest, so that the election irregularities may be fully ventilated and properly
adjudicated by the competent tribunal. They owe this not only to their clients but to
the proper administration of justice.
WHEREFORE, the petition for certiorari is hereby DISMISSED for its failure to show
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the Commission on Elections. No costs.
SO ORDERED.


EN BANC

G.R. No. 107847 June 2, 1994
IRMA C. ALFONSO, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE CITY BOARD OF CANVASSERS OF THE CITY OF
MANILA, and ALBERTO A. DOMINGO, respondents.

QUIASON, J.:
This is a petition for certiorari, assailing the Resolution of the Commission on
Elections (COMELEC) dated November 6, 1992, which denied petitioners demand for
a recount of the ballots under Article 234 of the Omnibus Election Code and the
Resolution dated November 13, 1992, which denied her motion for reconsideration.
We dismiss the petition.
I
In the May 11, 1992 elections, Pedro Alfonso ran for councilor in the First District of
Manila, which is entitled to elect six councilors.
On the eve of the elections, Pedro Alfonso died. At about 2:45 A.M. of May 11, 1992,
his daughter Irma Alfonso, petitioner herein, filed her certificate of candidacy in
substitution for her deceased father.
After the canvassing of the election returns by respondent City Board of Canvassers,
the results of the elections for councilors for the First District of Manila were
announced as follows:
1) Nieva, Ernesto 60,101
2) Gonzales, Gonzalo 44,744
3) Lopez, Honorio 35,803
4) Alfonso, Pedro 34,648
5) Cailian, Avelino 32,462
6) Ocampo, Roberto 31,264
7) Domingo, Alberto 28,715
(Rollo, p. 6).
Apparently, the respondent City Board of Canvassers added the votes of Pedro Alfonso
to those of petitioners thereby placing her in the fourth slot. Consequently, private
respondent questioned such action in a petition filed on May 29, 1992. He prayed that
the votes cast for Pedro Alfonso be declared as stray votes and that, accordingly, he
be proclaimed as the sixth winner for councilor in the First District of Manila.
On June 3, 1992, the COMELEC resolved private respondents petition as follows:
xxx xxx xxx
1) To GRANT the petition and to DECLARE all votes cast in favor of Pedro
Alfonso as stray votes;
2) To CREDIT in favor of respondent Irma Alfonso only those votes cast
with the name "ALFONSO" or IRMA ALFONSO; and
3) To DIRECT the City Board of Canvassers for the First District of Manila,
to reconvene the canvass and proclaim the winning candidate/s for the
position of city councilors for the First District of Manila (Rollo, p. 46).
Petitioner thereby questioned said resolution before this Court in G.R. No. 105577,
entitled "Irma Alfonso, as a substitute of candidate Pedro Alfonso v. COMELEC."
On June 16, 1992, the Court dismissed the aforesaid petition in a minute resolution,
after finding no grave abuse of discretion on the part of the COMELEC.
Similarly, respondent City Board of Canvassers filed a Motion for Clarification to the
COMELEC en banc, asking that:
xxx xxx xxx
1) it should clarify its resolution of June 3, 1992 by stating whether the
City Board of Canvassers and/or the Board of Election Inspectors shall
conduct a recount of the ballots or not;
2) the Honorable Commission should instruct the City Board of
Canvassers on how to implement par. 2 of the dispositive portion of the
resolution of June 3, 1992 (Rollo, p. 53).
COMELEC then clarified its resolution in an Order dated November 4, 1992, to wit:
xxx xxx xxx
RESOLVED to clarify the Resolution of the Commission of June 3, 1992 as
follows;
1. To grant the petition and to declare all votes cast in favor of Pedro
Alfonso as stray votes;
2) To credit in favor of respondent Irma Alfonso only those votes cast
with the name "Alfonso" or Irma Alfonso;
3) To direct the City Board of Canvassers for the First District of Manila,
to reconvene, canvass the election returns submitted by the board of
election inspectors, without opening any ballot box containing the
official ballots and proclaim the winning candidate for the sixth position
of city councilor in the First District of the City of Manila; and
4) Let the Law Department implement this resolution (Rollo, p. 20).
Petitioner moved for a partial reconsideration of the said order, invoking Section 234
of the Omnibus Election Code and asking that all votes cast in favor of Pedro Alfonso
be credited as the votes of Irma "Pete" Alfonso.
On November 23, 1992, COMELEC denied petitioners motion for partial
reconsideration and directed respondent City Board of Canvassers to implement the
Order dated November 4, 1992.
On December 1, 1992, petitioner instituted the present action, questioning the denial
of her motion for a recount of the ballots pursuant to Section 234 of the Omnibus
Election Code. On December 10, 1992, we issued a temporary restraining order.
Meanwhile, respondent City Board of Canvassers reconvened to implement the
COMELECs Order, obtaining the following results:
ALFONSO, IRMA 7,588
ALFONSO, PEDRO 23,644
DOMINGO, ALBERTO 25,825
In the course of the canvass, petitioner sought to exclude or set aside 740 election
returns on the grounds that her name and votes were omitted therein.
On December 8, 1992, respondent City Board of Canvassers issued a resolution,
denying the motion and resolving that:
xxx xxx xxx
IN VIEW OF THE FOREGOING, the Board, conformably with the provisions
of the second paragraph of Section 233 of the Omnibus Election Code, in
relation to Sec. 27, paragraph (h) of Comelec Resolution No. 2413 dated
April 15, 1992 and acting pursuant to Resolutions, respectively dated
November 4, 1992 and November 23, 1992, hereby finds that candidate
ALBERTO DOMINGO appears to be the winning candidate for the Sixth
position of City Councilor in the First District of the City of Manila.
ACCORDINGLY, let the proclamation of candidate-elect ALBERTO
DOMINGO be held on DECEMBER 14, 1992 at 10:00 A.M. at Office of the
Election Officer, Philippine Geriatrics Foundation Bldg., I, Lions Road,
Arroceros Street, Manila (pp. 3-4, ibid) (Rollo, p. 165).
On the same date, petitioner filed a notice of appeal to the COMELEC.
Considering that a temporary restraining order was issued by this Court on December
10, 1992 in the instant petition, petitioner did not pursue her appeal to the COMELEC.
Petitioner submits for our resolution, the following issues:
1
WHETHER OR NOT PETITIONER MAY STILL QUESTION RESPONDENT
COMELECS RULING THAT THE VOTES CAST IN FAVOR OF DECEASED
PEDRO ALFONSO SHOULD BE CONSIDERED STRAY VOTES.
2
WHETHER OR NOT RESPONDENT COMELEC ACTED WITH GRAVE ABUSE OF
DISCRETION IN DENYING PETITIONERS MOTION FOR A RECOUNT OF THE
BALLOTS.
3
WHETHER OR NOT THE ISSUES RAISED ARE RIPE FOR JUDICIAL
DETERMINATION.
The instant petition must fail.
II
Anent the first issue, there is no question that the votes in favor of Pedro Alfonso
shall be declared as stray votes and only those votes cast with the name "Alfonso" or
"Irma" shall be counted in favor of petitioner as ruled by the COMELEC in its
Resolution dated June 3, 1992. This was the holding of this Court in the Resolution
issued on June 16, 1992 in G.R. No. 105577 entitled "Irma Alfonso, as a substitute
candidate of Pedro Alfonso v. Comelec." Finding no grave abuse of discretion on the
part of the COMELEC in issuing its resolution dated June 3, 1992, the Court thereby
dismissed the petition. This issue can not be raised anew in the present petition.
There is, therefore, no merit with the assertion that the votes cast in favor of Pedro
Alfonso must be counted in favor of petitioner.
Invoking Section 234 of the Omnibus Election Code, petitioner claims that a recount
or reopening of the ballots boxes is necessary, considering that in some election
returns, her name was omitted and that of her father was not deleted. She argues
that it would be difficult to determine which votes should be credited in her favor by
a mere re-canvass.
At the outset, petitioners prayer for a reopening of the ballots is not a proper issue
for a pre-proclamation controversy. The issues raised by petitioner should be threshed
out in election protest. The case of Chavez v. Comelec, 211 SCRA 315 (1992),
citing Sanchez v. Comelec, 153 SCRA 67 (1987) is quite instructive on the matter. In
said case, we held:
xxx xxx xxx
Sanchez anchors his petition for recount and/or reappreciation on
Section 243, paragraph (b) of the Omnibus Election Code in relation to
Section 234 thereof with regard to material defects in canvassed
election returns. He contends that the canvassed returns discarding
Sanchez votes as stray were incomplete and therefore warrant a
recount or reappreciation of the ballots under Section 234.
xxx xxx xxx
. . . The fact that some votes written solely as "Sanchez" were declared
stray votes because of the inspectors erroneous belief that Gil Sanchez
had not been disqualified as a candidate, involves an erroneous
appreciation of the ballots. It is established by the law as well as
jurisprudence . . . that errors in the appreciation of ballots by the board
of inspectors are proper subject for election protest and not for recount
or reappreciation of ballots.
2. The appreciation of the ballots cast in the precincts is not a
"proceeding of the board of canvassers" for purposes of pre-proclamation
proceedings under Section 241, Omnibus Election Code, but of the
boards of election inspectors who are called upon to count and
appreciate the votes in accordance with the rules of appreciation
provided in Section 211, Omnibus Election Code. Otherwise stated, the
appreciation of ballots is not part of the proceedings of the board of
canvassers. The function of ballots appreciation is performed by the
boards of election inspectors at the precinct level.
3. The scope of pre-proclamation controversy is limited to the issues
enumerated under Sec. 243 of the Omnibus Election Code. The
enumeration therein of the issues that may be raised in pre-
proclamation controversy is restrictive and exclusive. In the absence of
any clear showing or proof that the election returns canvassed are
incomplete or contain material defects (sec. 234), appear to have been
tampered with, falsified or prepared under duress (sec. 235) and/or
contain discrepancies in the votes credited to any candidate, the
difference of which affects the result of the election (sec. 236), which
are the only instances where a pre-proclamation recount may be
resorted to, granted the preservation of the integrity of the ballot box
and its contents, Sanchez petition must fail. The complete election
returns whose authenticity is not in question, must be prima
facie considered valid for the purpose of canvassing the same and
proclamation of the winning candidates.
xxx xxx xxx
7. The ground for recount relied upon by Sanchez is clearly not among
the issues that may be raised in pre-proclamation controversy. His
allegation of invalidation of Sanchez' votes intended for him bear no
relation to the correctness and authenticity of the election returns
canvassed. Neither the Constitution nor statute has granted the Comelec
or the board of canvassers the power in the canvass of election returns
to look beyond the face thereof, once satisfied of their authenticity
(Abes v. Comelec, 21 SCRA 1252, 1256).
xxx xxx xxx
We can not over-emphasize the public policy involved in the rule that pre-
proclamation controversies shall be resolved in summary proceedings. The public
interest requires that:
xxx xxx xxx
. . . that the position for the filing of which the election was held should
be filled as promptly as possible, even if the proclamation of the winning
candidates be provisional in nature, in the sense that such would be
subject to the results of the election protest or protests that may be
expected to be filed. The Court is bound by high duty and responsibility
to give effect to this public policy which is enshrined in statutory norms
(infra). Petitioners principal remedy is to file election protests before
the appropriate agency of government-i.e., the Comelec (Article
IX[C][2][2], 1987 Constitution) and there to litigate all the issues raised
by them in as much detail as they might deem necessary or appropriate .
. ." (Dimaporo v. Comelec, 186 SCRA 769 [1990]).
WHEREFORE, the petition is DISMISSED for lack of merit. The Temporary Restraining
Order issued on December 8, 1992 is LIFTED.
SO ORDERED.


EN BANC

NURHUSSEIN A. UTUTALUM,
Petitioner,
G. R. No. 84843-44

January 22, 1990
-versus-
COMMISSION ON ELECTIONS
and ARDEN S. ANNI,
Respondents.


D E C I S I O N
MELENCIO-HERRERA, J.:

Petitioner Nurhussein A. Ututalum prays for the reversal, on the ground of grave
abuse of discretion, of the 19 April and 31 August 1988 Resolutions of public
respondent Commission on Elections [COMELEC], in Cases Nos. SP 87-469 and 87-497
which declined to reject the election returns from all the precincts of the
Municipality of Siasi, Sulu, in the last 30 May 1987 congressional elections and to
annul respondent Arden S. Anni's proclamation.
The undisputed facts follow:
1. Petitioner Ututalum and private respondent, Arden S. Anni, were among the
candidates in the last 30 May 1987 congressional elections for the Second District of
Sulu. 30 May was the date reset by the COMELEC from the 11 May 1987
elections.cralaw
2. The election returns from Siasi showed that Petitioner Ututalum obtained four
hundred and eighty-two [482] votes while respondent Anni received thirty-five
thousand five hundred and eighty-one [35,581] votes out of the thirty-nine thousand
eight hundred and one [39,801] registered voters [pp. 13, 187, Rollo]. If the returns of
Siasi were excluded, Petitioner Ututalum would have a lead of 5,301 votes.cralaw
3. On 4 June 1987, during the canvass of votes, Petitioner Ututalum, without availing
of verbal objections, filed written objections to the returns from Siasi on the ground
that they "appear to be tampered with or falsified" owing to the "great excess of
votes" appearing in said returns. He, then claimed that multiplying the 42 precincts of
Siasi by 300 voters per precinct, there should have been only 12,600 registered voters
and not 36,663 voters who cast their votes, thereby exceeding the actual authorized
voters by 23,947 "ghost voters." [In his Petition, however, he admits that an error was
committed since "in the May 30,1987 elections, Siasi had 148 precincts"]. (p. 6, Rollo).
He then prayed for the exclusion from the canvass of any election returns from
Siasi.cralaw
4. On the same day, 4 June, the Provincial Board of Canvassers of Sulu dismissed
petitioner's objections because they had been "filed out of time or only after the
Certificate of Canvass had already been canvassed by the Board and because the
grounds for the objection were not one of those enumerated in Section 243 of the
Election Code" [See Order, p. 155, Rollo]. Also on the same day, 4 June 1987,
petitioner filed with the Board of Canvassers his Notice of Appeal from said Resolution
to the COMELEC.cralaw
5. On 5 June 1987, petitioner filed his first petition with the COMELEC seeking a
declaration of failure of elections in the Municipality of Siasi and other mentioned
municipalities; that the COMELEC annul the elections in Siasi and conduct another
election thereat; and order the Provincial Board of Canvassers to desist from
proclaiming any candidate pending a final determination of the Petition.cralaw
6. On 8 June 1987, the Provincial Board of Canvassers forwarded Petitioner's appeal as
well as its Order dismissing the written objections to the COMELEC, with the request
for authority to proclaim Respondent Anni as the winning candidate.cralaw
7. On 11 June l987, in Case No. SPC 87-180, the COMELEC resolved that there was no
failure of elections in the 1st and 2nd Districts of Sulu except in specified precincts in
the 1st District.cralaw
8. On 14 June 1987, the Sulu Provincial Board of Canvassers proclaimed respondent
Anni as the winner. He subsequently took his oath of office and entered upon the
discharge of its functions in July 1987.cralaw
9. On 16 June 1987, petitioner filed a second Petition with the COMELEC praying for
the annulment of Respondent Anni's proclamation and for his own proclamation as
Congressman for the Second District of Sulu.cralaw
10. While those two petitions were pending, one Lupay Loong, a candidate for
Governor of Sulu, filed a verified Petition with the COMELEC to annul the List of
Voters of Siasi, for purposes of the election of local government officials [docketed as
SPC Case No. 87-624, p. 9, Rollo]. This Petition was opposed by Respondent Anni.
Petitioner Ututalum was not a party to this proceeding.cralaw
On 16 January 1988, the COMELEC issued in said SPC 87-624, a Resolution annulling
the Siasi List of Voters "on the ground of massive irregularities committed in the
preparation thereof and being statistically improbable", and ordering a new
registration of voters for the local elections of 15 February 1988 [p. 41 Rollo].cralaw
Said Resolution was affirmed by this Court in Anni vs. COMELEC, G. R. No. 81398, 26
January 1988 [p. 43, Rollo]. A new Registry List was subsequently prepared yielding
only 12,555 names [p. 228, Rollo].cralaw
11. Immediately after having been notified of the annulment of the previous Siasi List
of Voters, Petitioner Ututalum filed a supplemental pleading with the COMELEC
entreating that such annulment be considered and applied by the Commission in
resolving his two Petitions against Respondent Anni [p. 319, Rollo].cralaw
12. On 19 April 1988, in a consolidated Per Curiam Resolution, the COMELEC [First
Division] denied Petitioner Ututalum's two Petitions "for lack of merit, with the advise
(sic) that he may file an election contest before the proper forum, if so desired."
Declared the COMELEC, inter alia:
While we believe that there was padding of the registry list of voters in Siasi, yet to
annul all the votes in this municipality for purposes of the May 30, 1987 elections
would disenfranchise the good or valid votes. As held in Espaldon vs. Comelec [G. R.
No. L-78987, August 25, 1987], this Commission is not the proper forum nor is it a
proper ground in a pre-proclamation controversy, to wit:
Padded voter's list, massive fraud and terrorism is clearly not among the issues that
may be raised in a pre-proclamation controversy. They are proper grounds for an
election protest.

Petitioner Ututalum is now before Us assailing the foregoing Resolution. Petitioner
contends that the issue he raised before the COMELEC actually referred to "obviously
manufactured returns," a proper subject matter for a pre-proclamation controversy
and, therefore, cognizable by the COMELEC, in accordance with Section 243 of the
Omnibus Election Code, which provides:
Sec 243. The following shall be the issues that may be raised in a pre-proclamation
controversy:
xxx xxx xxx
(c) The election returns were prepared under duress, threats, coercion or intimidation
or they are obviously manufactured or not authentic; [Emphasis supplied]
xxx xxx xxx

Further, that the election returns from Siasi should be excluded from the canvass of
the results since its original List of Voters had already been finally annulled; and,
lastly, that there is no need to re-litigate in an election protest the matter of
annulment of the Registry List, this being already a "fait accompli."

It is Our considered view, however, that given the factual setting, it can not
justifiably be contended that the Siasi returns, per se, were "obviously manufactured"
and, thereby, a legitimate issue in a pre-proclamation controversy. It is true that in
Lagumbay vs. COMELEC [L-2544, 31 January 1966, 16 SCRA 175], relied upon heavily
by Petitioner Ututalum, this Court ruled that the returns are obviously manufactured
where they show a great excess of votes over what could have been legally cast. The
Siasi returns however, do not show prima facie that on the basis of the old List of
Voters, there is actually a great excess of votes over what could have been legally
cast considering that only 36,000 persons actually voted out of the 39,801 voters.
Moreover, the Lagumbay case dealt with the "manufacture" of returns by those
charged with their preparation as shown prima facie on the questioned returns
themselves. Not so in this case which deals with the preparation of the registry list of
voters, a matter that is not reflected on the face of said returns.
Basically, therefore, Petitioner's cause of action is the padding of the Siasi List of
Voters, which, indeed, is not a listed ground for a pre-proclamation controversy.
Sec. 243. Issues that may be raised in pre-proclamation controversy.- The following
shall be proper issues that may be raised in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material defects, appear
to be tampered with or falsified, or contain discrepancies in the same returns or in
other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this
Code;
(c) The election returns were prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were
canvassed, the results of which materially affected the standing of the aggrieved
candidate or candidates.
As pointed out in Espaldon vs. COMELEC, L-78987, 25 August 1987:
Padded voters' list, massive fraud, and terrorism are clearly not among the issues that
may be raised in a pre-proclamation controversy. They are proper grounds for an
election protest.

And as held in the case of Bautista vs. COMELEC, G. R. No. 78994, March 10, 1988:
The scope of pre-proclamation controversy is limited to the issues enumerated under
Section 243 of the Omnibus Election Code. The enumeration therein of the issues that
may be raised in a pre-proclamation controversy is restrictive and exclusive. [See also
Sanchez vs. COMELEC, G. R. No. L-78461, 12 August 1987, 153 SCRA 67].

But Petitioner insists that the new Registry List should be considered and applied by
the COMELEC as the legal basis in determining the number of votes which could be
legally cast in Siasi. To allow the COMELEC to do so retroactively, however, would be
to empower it to annul a previous election because of the subsequent annulment of a
questioned registry in a proceeding where petitioner himself was not a party. This
cannot be done. In the case of Bashier vs. COMELEC [L-33692, 24 February 1972, 43
SCRA 238], this Court categorically ruled:
The subsequent annulment of the voting list in a separate proceeding initiated motu
proprio by the Commission and in which the protagonists here were not parties,
cannot retroactively and without due process result in nullifying accepted election
returns in a previous election simply because such returns came from municipalities
where the precinct books of voters were ordered annulled due to irregularities in
their preparation.

Besides, the List of Voters used in the 1987 Congressional elections was then a validly
existing and still unquestioned permanent Registry List. Then, it was the only
legitimate roster which could be used as basis for voting. There was no prior petition
to set it aside for having been effected with fraud, intimidation, force, or any other
similar irregularity in consonance with Section 145 of the Omnibus Election Code. [1]
That List must then be considered conclusive evidence of persons who could exercise
the right of suffrage in a particular election [Abendante vs. Relato, 94 Phil. 8;
Medenilla vs. Kayanan, L-28448-49, 30 July 1971, 40 SCRA 154].
Moreover, the preparation of a voter's list is not a proceeding before the Board of
Canvassers. A pre-proclamation controversy is limited to challenges directed against
the Board of Canvassers, not the Board of Election Inspectors [Sanchez vs. COMELEC,
ante], and such challenges should relate to specified election returns against which
petitioner should have made specific verbal objections. [Sec. 245, Omnibus Election
Code; Pausing vs. Yorac, et al., G. R. No. 82700, 4 August 1988, Endique vs. COMELEC,
G.R. Nos. 82020-21, 22 November 1988] but did not.cralaw
That the padding of the List of Voters may constitute fraud, or that the Board of
Election Inspectors may have fraudulently conspired in its preparation, would not be a
valid basis for a pre-proclamation controversy either. For, whenever irregularities,
such as fraud, are asserted, the proper course of action is an election protest.cralaw
Such irregularities as fraud, vote-buying and terrorism are proper grounds in an
election contest but may not as a rule be invoked to declare a failure of election and
to disenfranchise the greater number of the electorate through the misdeeds,
precisely, of only a relative few. Otherwise, elections will never be carried out with
the resultant disenfranchisement of the innocent voters, for the losers will always cry
fraud and terrorism [GAD vs. COMELEC, G. R. No. 78302, May 26, 1987, 150 SCRA
665].cralaw
Petitioner Ututalum's other submission is that the Siasi returns should be excluded
since the List of Voters on which it was based has been conclusively annulled. He thus
asks for the application of the rule on res judicata. This is neither possible. Aside
from the fact that the indispensable requisites of res judicata, namely, identity of
parties, of subject matter, and of cause of action are not all present, the ruling
desired would, as the COMELEC had opined, disenfranchise the good and valid votes in
the congressional elections of 30 May 1987.cralaw
Finally, this Petition has to fail if only on the basis of the equally important doctrine
enunciated in Padilla vs. COMELEC [L-68351-52, 9 July 1985, 137 SCRA 424] reiterated
in Baldo vs. COMELEC [G. R. No. 83205,14 July 1988] that:
Where the respondent had already been proclaimed as the elected representative of
the contested congressional district and has long assumed office and has been
exercising the powers, functions, and duties appurtenant to said office, the remedy of
the petitioner lies with the House of Representatives Electoral Tribunal. The pre-
proclamation controversy becomes moot and academic.

and in the more recent case of Antonino vs. COMELEC [G. R. No. 84678, 29 March
1989]:
Where the winning candidates have been proclaimed, the pre-proclamation
controversies cease. A pre-proclamation controversy is no longer viable at this point
in time and should be dismissed. The proper remedy thereafter is an election protest
before the proper forum. Recourse to such remedy would settle the matter in
controversy conclusively and once and for all.

Having arrived at the foregoing conclusions, a discussion of the other peripheral issues
raised has been rendered unnecessary.
WHEREFORE, this petition for certiorari is hereby dismissed and the assailed
Resolutions are affirmed. No costs.cralaw
SO ORDERED.


EN BANC
G.R. No. Nos. 79646-49 November 13, 1987
RODERICO VILLAROYA, Petitioner, vs. COMMISSION ON ELECTIONS, BENEDICTA B.
ROA and CITY BOARD OF CANVASSERS OF CAGAYAN DE ORO Respondents.chanrobles
virtual law library
GANCAYCO, J.:
The issue in this petition is whether or not the COMELEC can order the examination of
the election return of a precinct by retrieving the same from the ballot box and
comparing the same with the statement of votes issued by the city board of
canvassers in order to verify herein private respondent's claim that by clerical error
her votes therein were under tabulated by 57 votes thus giving an erroneous victory
margin of 26 votes to petitioner as a pre-proclamation controversy even if the
protestant failed to raise the issue before the Board of Canvassers during the
canvassing.chanroblesvirtualawlibrary chanrobles virtual law library
Petitioner Villaroya and private respondent Roa were among the Congressional
candidates in Cagayan de Oro City in the May 11, 1987 elections. The city board of
canvassers canvassed and tabulated the statement of votes coming from 598
precincts. The tabulation was terminated on May 16, 1987 and reported that Villaroya
garnered 908,222 votes, while respondent Roa got a total of 38,196 votes, with a
plurality of 26 votes, in favor of petitioner Villaroya. Due to the protest of the lawyers
of Roa, Villaroya was not proclaimed by the Board of
Canvassers.chanroblesvirtualawlibrary chanrobles virtual law library
On May 17, 1987, Roa filed a petition in the COMELEC contesting the election returns
of 7 precincts namely Nos. 100-A (Agusan), 196-B (Carmen), 201 (Carmen), 213
Cugman 262 (Patag), 234 (Nazareth) and 311-A (Macasandig) due to fraud, duress,
falsification and other grounds. Acting on the petition, the COMELEC on May 19, 1987
sent a telex to the City Board of Canvassers to suspend the proclamation of any
winning candidate for the city until further orders of the
Commission.chanroblesvirtualawlibrary chanrobles virtual law library
Upon a formal request made by Roa on May 19, 1987, the Board of Canvassers
furnished her on May 21, 1987 a copy of the Statement of Votes (CE Form 27). On May
22, 1987, Roa filed with the Board of Canvassers a protest for the error or mistake in
the tabulation of the election returns in voting center No. 302-A. On May 23, 1987 Roa
filed with the Board an amended protest that while the election returns of the voting
center No. 302-A at Barangay Macalalad shows a total of 111 votes for Roa and 35
votes for Villaroya, the statement of votes shows that only 54 votes were credited to
Roa and 35 votes for Villaroya, thus depriving Roa of 57 votes; that the mistake was
committed by the adoption of the sub-total of Roa of 54 votes in the election return
without considering the first sub-total of 57 votes or a grand total of 111 votes in the
same election return; that because the Board failed to convene and act on the protest
and amended protest Roa filed with the Commission on Elections the supplemental
petition praying for the correction of the statement of votes (CE Form 27-A) in voting
center No. 302-A which should be 111 and not 54 only and for her proclamation as the
duly elected congresswoman of Cagayan de Oro City. After Villaroya filed an answer
to the supplemental petition, Roa filed her reply thereto. The case was heard by the
2nd division of the Commission. On July 8, 1987, an Order was issued which reads as
follows:
Considering the allegations in the Supplemental Petition, as well as in the answers,
and the arguments adduced during hearing held on June 17, 1987, the Commission
(SECOND DIVISION) hereby specifically directs the Respondent Board of Canvassers of
Cagayan de Oro City:
a) To reconvene in Cagayan de Oro City not later than Forty Eight (48) hours from
receipt of this Order; chanrobles virtual law library
b) To verify from the election returns of Precinct No. 302- A (Macabalan), Cagayan de
Oro City, the actual votes cast for Petitioner and for private respondent as shown
therein; and chanrobles virtual law library
c) The Respondent City Board is further directed to proclaim the winner after the
above-mentioned verification. 1
On July 10, 1987, Villaroya filed with the Commission en banc a motion for
reconsideration or appeal from said Order. Roa filed an Opposition to said Motion,
while Villaroya filed his rejoinder. On August 18, 1987, the Commission en banc issued
its decision denying Villaroya's motion for reconsideration, the dispositive part of
which reads as follows:
WHEREFORE, in view of the foregoing, the Commission en banc, rules that:
1. The Motion for Reconsideration filed by Respondent Roderico Villaroya is DENIED,
The Commission has jurisdiction upon this pre-proclamation
protest.chanroblesvirtualawlibrary chanrobles virtual law library
2. The election returns of Precinct No. 302-A Macabalan Cagayan de Oro City be
verified to determine the actual votes cast for Petitioner Benedicta B. Roa and
Roderico Villaroya in the election of May 11,
1987.chanroblesvirtualawlibrary chanrobles virtual law library
3. There shall be constituted a new City Board of Canvassers for Cagayan de Oro City
composed of the Provincial Election Supervisor of Misamis Oriental Region X as
Chairman and the Assistant City Fiscal of Cagayan de Oro City as Vice-Chairman, and a
lawyer of the Law Department of the Commission on Elections, Manila as member.
This Board of Canvassers shall convene immediately for the purpose of verifying the
election return of Precinct No. 302-A (Macabalan) and, thereafter, completing the
canvass of the election returns from the various election precincts of the lone
Congressional District of Cagayan de Oro City, and, thereafter, proclaim a winning
candidate.
2

Because only three commissioners (Haydee, Yorac, Andres Flores and Tomas V. de la
Cruz) voted affirmatively while two (Chairman Ramon H. Felipe, Jr. and Leopoldo L.
Africa) dissented and Commissioner Anacleto D. Badoy, Jr., qualified his vote, on
August 19, 1987 Roa filed a motion for clarification and motion for reconsideration of
the qualified vote of Com. Badoy After Villaroya filed his comment on said motion, on
Sept. 3, 1987 Com. Badoy issued his clarification in effect joining the three
commissioners who voted for the verification of the election return in Precinct No.
302-A (Macabalan) only.chanroblesvirtualawlibrary chanrobles virtual law library
Upon instruction of Chairman Felipe, Jr. the new Board convened at Cagayan de Oro
City on Sept. 5 and 6, 1987 and after verification of the election return in Precinct
No. 302-A (Macabalan showing that Roa obtained 111 votes and not 54 votes only, Roa
was proclaimed the duly elected congresswoman of Cagayan de Oro City with a
margin of 31 votes over Villaroya.chanroblesvirtualawlibrary chanrobles virtual law
library
In the meanwhile on Sept. 7, 1987, Villaroya filed in this Court the herein petition for
certiorari, prohibition and mandamus with prayer for the issuance of a temporary
restraining order or writ of preliminary injunction alleging that Roa not having filed an
objection with the Board of Canvassers during the canvassing, deprived the COMELEC
of appellate jurisdiction to entertain Roa's petition of Roa for the verification of the
election return n question 302-A (Macabalan) for comparison with the statement of
votes and that the question was not proper for a pre-proclamation controversy but in
an election contest that should be brought before the house electoral tribunal.
Villaroya further alleged that the direct filing of the protest with the COMELEC did
not make it a pre-proclamation controversy; that the decision of the COMELEC of
August 18, 1987 authorizing such verification by the Board of Canvassers was illegal,
arbitrary and was issued without jurisdiction or with grave abuse of discretion and
prayed for the issuance of a writ of preliminary injunction and/or restraining
order.chanroblesvirtualawlibrary chanrobles virtual law library
Acting on the petition, the Court on September 8, 1987 required respondents to
comment thereon and in order to maintain the status quo issued a temporary
restraining order enjoining the COMELEC from enforcing and implementing the
questioned decision.chanroblesvirtualawlibrary chanrobles virtual law library
On September 14, 1987, petitioner Villaroya filed a supplement to the petition
alleging that on September 6, 1987 the new Board convened at Cagayan de Oro City
without waiting for the lapse of the five (5) day-period required by the Omnibus
Election Code over the objection of petitioner's counsel to defer the canvassing until
September 9, 1987 and the motion to disqualify Alejandra Barbac and Casiano
Gamotin, Jr. as chairman and vice-chairman respectively; that copy of a telegram of
the COMELEC on September 6, 1987 to said Board not to proceed with the
implementation of the COMELEC decision until after September 8, 1987, was
delivered to the son of canvassing board chairman Atty. Barbac who refused to
receive the same; that a long distance call of Atty. Horacio Apostol, manager of the
law department of the COMELEC to Atty. Barbac was not entertained by Barbac who
hanged up the receiver of the telephone; that said board proceeded by breaking the
padlock of the door of the storeroom containing the ballot boxes and removing the
ballot box containing the election return for Precinct No. 302-A (Macabalan), then
they broke its padlocks and retrieved the election return therefrom after which Roa
was proclaimed; that Speaker Ramon Mitra, having learned of the COMELEC telegram
turned down the request of Roa to assume the post. Petitioner prayed for the
issuance of another restraining order sought against Roa's assumption of office, and
prayed to the Court to declare the proclamation of Roa as null and void and to order
the Board to recount the votes in 24 precincts counter protested by the petitioner, or
to order a recount of the votes in all the 598 precincts of Cagayan de Oro
City.chanroblesvirtualawlibrary chanrobles virtual law library
On September 17, 1987 the Court issued its resolution requiring respondents to
comment thereon and Atty. Barbac, Fiscal Gamotin and Atty. Urbano C. Orlando as
members of the City Board of Canvassers to show cause why they should not be held
in contempt of court for disregarding the order issued by this Court on September 8,
1987. A restraining order was issued enjoining Roa from assuming the seat in the
House of Representatives representing Cagayan de Oro City and from discharging the
duties and function thereof.chanroblesvirtualawlibrarychanrobles virtual law library
Respondent Roa submitted a motion to dissolve the restraining order and her
comment on the supplemental petition. Petitioner filed a reply thereto. Public
respondents submitted their comment. Petitioner then filed the Opposition to the
motion to dissolve the restraining order and reply to Roa's comment. Asst. Fiscal
Gamotin, Jr. submitted his comment while petitioner submitted a reply to the public
respondents comment. Fiscal Gamotin, thereafter submitted a supplemental comment
while Orlando, election attorney, filed his manifestation. The case was submitted for
resolution after the court heard the parties on November
10th.chanroblesvirtualawlibrary chanrobles virtual law library
The crux of the case is whether the COMELEC committed a grave abuse of discretion
in ordering the City Board of Canvassers to verify the election returns of Precinct 302-
a (Macabalan) as to the number of votes received by petitioner Roa as compared with
the statement of votes for the same precinct.chanroblesvirtualawlibrary chanrobles
virtual law library
Resolving this issue in the questioned decision, the COMELEC found and held as
follows:
The crucial question is: WERE THESE PROTESTS FILED SEASONABLY ON MAY 22 AND 23,
1987?chanrobles virtual law library
During the canvassing held by the City Board of Canvassers of Cagayan de Oro City
from May 11 to 16, 1981 (when the City Board of Canvassers claimed then connected
the canvass) the said City Board of Canvassers created) 'canvassing units' which
tabulated the election returns of Precinct No. 302-A (Refer to page 3, Supplement to
the Motion to Dismiss filed by Respondent Villaroya on June 20, Thereafter. the
tabulated returns A re recorded in the Statement of Votes prepared 1 the City Board
of Canvassers, Cagayan de Oro City which reflected Notes for Roa and Villaroya of 54
and 35 respectively.chanroblesvirtualawlibrary chanrobles virtual law library
Because there were several 'canvassing units' created by the City Board of Canvassers,
(it was probable) that when Precinct No. 302-A (Macabalan) was being canvassed,
since there were other canvassings going on simultaneously, the watchers of
Petitioner Roa did not become aware of the discrepancy between the election return
and certificate of votes coming from the Board of Election Inspectors of Precinct 302-
A and the recording of the votes in the Statement of Votes of the City Board of
Canvassers.chanroblesvirtualawlibrary chanrobles virtual law library
The discrepancy was discovered 'only upon receipt of the official copy of the
Statement of Votes on May 21, 1981' which official copy was obtained only after a
formal request therefore dated May 19, 1987... Refer to page 2, 111; Opposition To
Ex-Parte Motion To Lift Order of Suspension of Proclamation filed by Petitioner on
June 27, 1987).chanroblesvirtualawlibrary chanrobles virtual law library
Petitioner Roa, thru counsel, reacted expeditiously by filing the 'Protest' and Amended
Protest' (previously quoted herein) on May 22 and 23, 1987 respectively. (annexes S
and S-1).chanroblesvirtualawlibrary chanrobles virtual law library
It is obvious that Petitioner Roa did not file a protest with the Board of Election
Inspectors of Precinct No. 302-A (Macabalan) because the election returns and other
records of Precinct No. 302-A reflected one hundred eleven (111)
votes.chanroblesvirtualawlibrary chanrobles virtual law library
Since Petitioner Roa and/or her watchers knew she garnered one hundred eleven
(111) votes in Precinct No. 302-A (Macabalan) it would stretch the credulity of this
Commission to believe that the watchers/lawyers of Petitioner Roa will just keep
quiet and allow the recording of only fifty four (54) votes for their candidate when
the Election Return of said precinct No. 302-A was canvassed. It is against any form of
reasonable expectation or belief that these watchers/lawyers of Petitioner Roa who
had filed objections and protests time after time with the City Board of Canvassers of
Cagayan de Oro City would now knowingly acquiesce to the wrong entry of votes for
Petitioner Roa.chanroblesvirtualawlibrary chanrobles virtual law library
But their reaction was quick and spontaneous when they received the copy of the
Statement of Votes prepared by the City Board of Canvassers on May 21, 1987 In
succession a 'Protest' and 'Amended Protest' were filed with the City Board of
Canvassers of Cagayan de Oro City on May 22 and 23, 1987 respectively and eventually
this matter became the subject of the 'Supplemental Petition' of May
24,1987.chanroblesvirtualawlibrary chanrobles virtual law library
It cannot be expected that a person who is unaware of a defect/discrepancy would
just object for no reason at all. It would be another matter if becoming aware of the
discrepancy, he slept on his rights. This did not happen
here.chanroblesvirtualawlibrary chanrobles virtual law library
The City Board of Canvassers of Cagayan de Oro City has consistently claimed that
they have already completed the canvass on May 16, 1987 and that no objections have
been received by the said Board of Canvassers, Cagayan de Oro City, 'Minutes of the
City Board of Canvassers, Cagayan de Oro City' prepared by Nena S. Yanez,
Stenographer and attested by Sol Matugas Ed. D., Schools Division Superintendent,
Secretary, City Board of Canvassers, we find the following entry;
Before adjournment (May 16, 1987-our supply of data) the Chairman of the City Board
of Canvassers announced to the public that on the following day, May 17, 1987 she
win transmit the Certificate of Canvass for Senatorial Candidates to
Manila.chanroblesvirtualawlibrary chanrobles virtual law library
The City Board of Canvassers of Cagayan de Oro City hereby adjourned the canvassing
until 2.00 P.M., Monday, May 18,1987 (emphasis ours) (See Minutes, Annex 'DD',
Petition).
Since that time, May 16, 1987, the City Board of Canvassers of Cagayan de Oro City,
had not convened because the Chairman Atty. Bernardita Cabacungan, had absented
herself and was reported to be in Manila. This led to a telegram report of the Vice-
Chairman to the Commission.chanroblesvirtualawlibrary chanrobles virtual law library
Where can Petitioner Roa then file her case except directly with the Commission? The
cognizance granted to the Supplemental petition is supported by a long line of
decisions by the Supreme Court beginning with the often quoted 'Olfato' case
It must be observed further, that there is no plausible reason to prohibit an aggrieved
candidate from filing an objection regarding the election returns correctly before the
Comelec itself if the election irregularities that vitiate the integrity of the election
returns are not apparent upon their faces. What is therefore involved is the original
jurisdiction of the Comelec rather than its appellate jurisdiction for precisely the
objection is filed not before the Board of Canvassers because the irregularities are not
apparent upon the face of the election returns.chanroblesvirtualawlibrarychanrobles
virtual law library
Olfato vs. COMELEC
L-52749, 103 SCRA 741
March 31, 1981
The Commission en banc rules, therefore, that the protest or objection filed by
Petitioner Bernardita Roa on May 22 and 23, 1987, after discovery of the discrepancy
in the Statement of Votes for Precinct No. 302-A, Macabalan was filed
seasonably.chanroblesvirtualawlibrary chanrobles virtual law library
In the landmark decision of the Supreme Court in the case of Cauton vs. COMELEC (19
SCRA 914) it was enunciated thus:
This Court in a line of decisions has ruled that the Commission on Elections has the
power to investigate and act on the propriety or legality of the canvass of election
returns made by the board of canvassers ... .
Citing the case of Albano vs. Arranz L-19260, January 31, 1962, the Supreme Court
thru Justice J.B.L. Reyes, said: chanrobles virtual law library
The Commission certainly had the right to inquire whether or not discrepancies
existed between the various copies of election returns
...chanroblesvirtualawlibrary chanrobles virtual law library
Continuing, the Supreme Court said:
When the Commission on Elections exercises this power, the purpose is not for the
Commission to help a candidate win the election but to bring about the canvass of the
true results of the elections as certified by the Board of Election Inspectors in every
precinct. (Emphasis ours) ...
Once the commission on Elections is convinced that the election returns in the hands
of the board of canvassers do not constitute the proper basis in ascertaining the true
result of the elections, it should be its concern nay its duty, to order that the proper
basis for the canvass is obtained or made available.
The Commission en banc finds that the case at bar falls within the ambit of the above-
cited decisions of the Supreme Court. The Commission, therefore, rules that it has
jurisdiction to give due course to the Petition filed on May 17, 1987 and the
Supplemental Petition filed on May 24, 1987 by the Petitioner Bernardita B.
Roa.chanroblesvirtualawlibrary chanrobles virtual law library
The clear and express mandate upon the Commission on Elections to "enforce and
administer all laws and regulations relative to the conduct of an election ..." (Art IX,
C, 2(l) Constitution of the Philippines, 1986) is designed to elicit the true and genuine
will and choice of the electorate as expressed though the ballot. To this end we have,
as a Commission, dedicated ourselves unequivocably, without fear or favor.
3

We uphold the questioned COMELEC decision.chanroblesvirtualawlibrary chanrobles
virtual law library
The circumstances of this case are peculiar as the question raised is not as to the
correctness of the election returns but that of the statement of votes taken from the
election returns by the City Board of Canvassers during the canvassing. Said error in
the statement of votes was not discovered by the watchers of Roa during the
canvassing and Roa learned of the said discrepancy of the number of votes she
received in the statement of votes for Precinct No. 302-A (Macabalan) for the first
time only on May 21, 1987 when she received its copy upon her request to the board
showing precisely such discrepancy. She wasted no time in filing a protest and
amended protest with the City of Board of Canvassers, who never met to consider the
same. Since the old board was not available Roa thus went direct to the COMELEC for
the purpose. Under the Constitution, the COMELEC has the following powers and
functions:
xxx xxx xxxchanrobles virtual law library
(1) Enforce and administer all laws and regulations relative to the conduct of an
election plebiscite, initiative, referendum, and
recall.chanroblesvirtualawlibrary chanrobles virtual law library
(2) Exercise exclusive original jurisdiction over all contests relating to the election
returns, and qualifications of all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective municipal officials decided
by trial courts of general jurisdiction, or involving elective barangay officials decided
by trial courts of limited jurisdiction.chanroblesvirtualawlibrary chanrobles virtual law
library
Decisions, final orders, or rulings of the Commission on election contests involving
elective municipal and barangay offices shall be final, executory, and not appealable.
Decide, except those involving the right to vote, all questions affecting elections,
including determination of the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.
4
chanrobles virtual law
library
From the foregoing, it is clear that the COMELEC has ample power to see to it that the
elections are held in a clean and orderly manner and it may decide all questions
affecting the elections and has original jurisdiction on all matters relating to election
returns,
5
including the verification of the number of votes received by opposing
candidates in the election returns as compared to the statement of votes in order to
insure that the true will of the people is known. Such a clerical error in the statement
of Notes can be ordered corrected by the COMELEC
ELECTION.chanroblesvirtualawlibrary chanrobles virtual law library
It is no fault of Roa if she or her representatives failed to file the timely protest
during the canvassing as the error in the statement of votes was not apparent on its
face and/or was not noticed by her watchers. It was actually discovered only on May
21, 1987 when Roa received a copy of the statement of votes she requested from the
Board. No less than the election inspectors who were assigned to Precinct No. 302-A
(Macabalan) attested under oath to the fact that the actual number of votes received
by Roa in said precinct was 111 and not 54.
6
This is corroborated by the improvised
certificate of votes issued by the election inspectors to the watchers of Roa after the
canvass.
7
Since there is clear evidence of such discrepancy between the number of
votes tabulated for Roa in the statement of vote for Precinct No. 302-A (Macabalan)
as compared to the number of votes she actually received during the counting at the
precinct, as hereinabove explained, it was the duty of the COMELEC to see to it that
this matter should be verified from the election return as a pre-proclamation
controversy. It cannot wash its hands by asking Roa to bring the matter to the
electoral tribunal as an election protest.chanroblesvirtualawlibrary chanrobles virtual
law library
Petitioner makes much capital of the fact that the proclamation of respondent Roa
appears to have been done within the 5-day period after the rendition of the
judgement against the order of the COMELEC to suspend the same. There is no
positive evidence that the members of the Board of Canvassers defied the order of
the COMELEC to suspend the canvassing and/or that they received such order before
they made the canvass and proclaimed Roa. What appears is that it was only after
they completed their task that the telegram of the COMELEC to suspend the canvass
was received for transmission by the RCPI in Cagayan de Oro City at 5:20 P.M. of
September 6, 1987.
8
The verification of the contents of the election return in
Precinct No. 302-A was made from 11:00 A.M. to 12:50 Noon. Roa was proclaimed
winner at 4:00 P.M. and she took her oath before MTCC Judge Roque V. Edmilao at
4:40 P.M.
9
chanrobles virtual law library
As to the alleged refusal of Atty. Barbac to entertain the phone call of Atty. Apostol,
Roa has shown that there was no telephone in the session hall where the canvassing
was undertaken. Moreover, an that Atty. Apostol said in his affidavit is that
"everytime contact is made at the other end, the telephone thereat is invariably hung
up. 10 chanrobles virtual law library
The true will of the electorate of Cagayan de Oro City must be upheld. Roa won by 31
votes and thus she is entitled to sit as their
representative.chanroblesvirtualawlibrary chanrobles virtual law library
The protestation of petitioner that the election returns in 24 other election precincts
should be examined cannot be given due course as correctly ruled by the COMELEC.
Petitioner failed to demonstrate that there was a similar discrepancy or error
between the statement of votes and the corresponding election returns in said
precincts. Much less can the Court consider the plea of petitioner for a recounting of
the votes in all the 598 precincts? If at an, petitioner has the remedy of an election
protest in the house electoral tribunal.chanroblesvirtualawlibrary chanrobles virtual
law library
WHEREFORE, the petition is DISMISSED for lack of merit. The restraining orders of
September 8, 1987 and September 17, 1987 are hereby DISSOLVED effective
immediately. This dismissal is immediately
executory.chanroblesvirtualawlibrary chanrobles virtual law library
SO ORDERED.


EN BANC
G.R. No. 86362-63 October 27, 1989
RAMON D. DUREMDES, petitioner,
vs.
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF ILOILO, LAKAS
NG BANSA and CIPRIANO B. PENAFLORIDA, respondents.
Panganiban, Benitez, Barinaga & Bautista Law Offices, Lead Counsel for petitioner.
Nery D. Duremdes Co-counsel for petitioner.
Brillantes, Nachura, Navarro & Arcilla Law Offices for private respondent.

MELENCIO-HERRERA, J.:
At stake in this election controversy is the Vice-gubernatorial position of the Province
of Iloilo.
The chronology of the facts and of the case follows:
1. In the 18 January 1988 elections, petitioner Ramon D. DUREMDES, private
respondent Cipriano B. PENAFLORIDA, and Rufino Palabrica ran for the office of Vice-
Governor of the Province of Iloilo.
DUREMDES was the official candidate of the Liberal Party (LP) and PDP-Laban
coalition, while PENAFLORIDA was the official candidate of the Lakas ng Bansa
(Lakas).
2. During the canvass of votes by the Provincial Board of Canvassers of Iloilo, which
lasted from 20 January to 31 January 1988, PENAFLORIDA objected verbally to some
110 election returns from various precincts, which he followed up with written
objections. The Board overruled the same in separate Orders either because they
were not timely filed or that the formal defects did not affect the genuineness of the
returns, or that in case of allegations of tampering, no evidence was presented to
support the charge. The Board thus ordered the inclusion of the questioned election
returns. This was reflected in a separate column under the heading
"Contested/Deferred Votes" in the "Certificate of Votes of Candidates" (Form No. 13A,
Annex "K," Petition, p. 60 Rollo).
3. Under date of 29 January 1988, PENAFLORIDA and the Lakas filed with the
COMELEC an "Appeal by Way of a Petition for Review," from the aforesaid rulings of
the Board pleading, among others, for the exclusion of the questioned election
returns and for PENAFLORIDA's proclamation as the elected Vice-Governor of Iloilo
(Annex "L," Ibid., p. 62, Rollo).
4. On 30 January 1988, PENAFLORIDA filed, also with the COMELEC, a Petition seeking
the annulment of election returns and the suspension of the proclamation of any
candidate, docketed as SPC Case No. 88-448 (Annex "Q," Ibid., p. 96, Rollo).
5. On 31 January 1988, in a "Certification of Canvass of Votes and Proclamation of the
Winning Candidates for Provincial Offices" (Form No. 26, Annex "N," Ibid., p. 84,
Rollo), the Board proclaimed DUREMDES as the duly elected Vice- Governor, together
with the duly elected Governor and only eight (8) members of the Sangguniang
Panlalawigan of Iloilo. Certified to was that DUREMDES had garnered 157,361 votes
(the number of his uncontested votes) in 2,377 precincts.
Apparently, the Board had made the proclamation upon DUREMDES' "Manifestation and
Motion," dated the same day, 31 January 1988, that "the contested returns will not
adversely affect the uncontested results of the election (See Section 245, Omnibus
Election Code) ... because of the absolute certainty that candidate Ramon Duremdes
has obtained the highest number of votes, whether or not the contested votes were
excluded."
6. The tabulated data in the Certificate of Votes of Candidates (Annex "K," Petition) is
reproduced below in so far as the protagonists herein are concerned, with the totals
and/or remainders supplied by us:
Non-Contested Contested/ Grand
Deferred Total
Votes
DUREMDES 157,361 13,373 171,734
PENAFLORIDA 150,075 + 4,427 -154,602
7,286 17,800 17,232
6. On 2 February 1988, DUREMDES took his oath and assumed office (Annex "O," Ibid.).
7. Also on 2 February 1988, an "Intervention with Motion to Dismiss" was filed by
DUREMDES and two other candidates for the Sangguniang Panlalawigan, seeking the
denial of PENAFLORIDA's Petition for Annulment before the COMELEC, for lack of
merit.
8. On 12 February 1988, Perla S. Zulueta (also an Intervenor in SPC Case No. 88-448),
filed SPC Case No. 88-653 pleading that she be proclaimed as one of the winning
candidates in the 10-member Iloilo Sangguniang Panlalawigan.
9. On 8 March 1988, PENAFLORIDA filed an Amended Petition challenging, in addition,
the legality of the composition of the Provincial Board of Canvassers, "a ground just
known lately," and praying for a recanvassing of the objected election returns.
10. On 4 April 1988, the COMELEC granted a Motion for the consolidation of SPC Case
No. 88-653 with SPC Case No. 88-448.
11. On 20 June 1988, PENAFLORIDA filed with the COMELEC a Supplemental Petition
('in amplification of the Amended petition for verification and correction") charging,
among others, that DUREMDES was proclaimed "on the basis of increased votes in the
unofficial and separately tallied Statement of Votes, more than what was actually
reflected in the Election Returns."
12. On 20 September 1988, the COMELEC (Second Division), after hearing, issued a Per
Curiam Resolution, sustaining the rulings of the Board of Canvassers on PENAFLORIDA's
objections as well as DUREMDES' proclamation. The decretal portion of that
Resolution reads:
WHEREFORE, IN VIEW OF ALL THE FOREGOING, judgment is hereby
rendered:
1. Sustaining and affirming the rulings of the Provincial Board of
Canvassers of Iloilo on the objections interposed by petitioner on the
inclusion in the canvass of the questioned returns;
2. Sustaining the proclamation of the winning candidate for Vice-
Governor;
3. Directing the Provincial Board of Canvassers to immediately
reconvene and to include in the canvass the questioned election returns;
and thereafter to proclaim the winning candidates for the Ninth (9th)
and Tenth (10th) slots for the Sangguniang Panlalawigan of the Province
of Iloilo; and
4. Directing the Law Department of the Commission to conduct a
thorough investigation into the matter of the reported falsification of
the transcripts of the stenographic notes of Stenographer Nelly C. Escana
to determine the parties responsible therefor and to cause the filing of
the necessary criminal complaint against those probably guilty thereof as
the evidence may warrant, and if the assistance of the National Bureau
of Investigation or any other investigative arm of the Government for
that purpose is necessary, to request for such assistance.
No pronouncement as to costs. (pp. 137-138, Rollo) (Italics ours).
13. On 27 September 1988, PENAFLORIDA moved for reconsideration, whereupon, the
Second Division certified and elevated the case to the COMELEC en banc.
14. On 4 October 1988, PENAFLORIDA filed a Motion to Suspend Implementation of the
Second Division Resolution of 20 September 1988 pending resolution of his Motion for
Reconsideration, which suspension was granted by the COMELEC on 5 October 1988.
15. In the meantime, on 10 December 1988, the Board reconvened for the purpose of
proclaiming the 9th and 10th placers for the Sangguniang Panlalawigan of Iloilo. It was
at the scheduled promulgation of 15 December 1988 that the Chairman of the Board
openly admitted the existence of discrepancies between the entries of votes in the
Statement of Votes and the votes reflected in the questioned election returns (P. 6,
COMELEC en bancDecision).
16. On 12 January 1989, the COMELEC en banc rendered the assailed Per
Curiam Decision with the following disposition:
WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby
rendered:
1. Affirming the following parts of the dispositive portion of the
Resolution of the Second Division promulgated on 20 September 1988:
1. Sustaining and affirming the rulings of the Provincial
Board of Canvassers of Iloilo on the objections interposed
by petitioner on the inclusion in the canvass of the
questioned returns.
2. Directing the Provincial Board of Canvassers to
immediately reconvene and to include in the canvass the
questioned election returns and thereafter to proclaim the
winning candidates for the Ninth (9th) and Tenth (10th)
slots for the Sangguniang Panlalawigan of the Province of
Iloilo; and
3. Directing the Law Department of the Commission to
conduct a thorough investigation into the matter of the
reported falsification of the transcripts of the stenographic
notes of Stenographer Nelly Escana to determine the
parties responsible therefor and to cause the fling of the
necessary criminal complaint against those probably guilty
thereof as the evidence may warrant, and if the assistance
of the National Bureau of Investigation or any other
investigative arm of the Government for that purpose is
necessary, to request for such assistance.
2. Reversing that part of the dispositive portion which reads:
2. Sustaining the proclamation of the winning candidate for
Vice- Governor and setting aside the proclamation of
Intervenor Ramon Duremdes as Vice-Governor of Iloilo.
3. Declaring as null and void the proclamation of Intervenor Ramon
Duremdes;
4. Directing the Provincial Board of Canvassers of Iloilo to immediately
reconvene and to include in the canvass of votes for Vice-Governor the
questioned/contested returns. For that purpose, the Board shall make a
formal tabulation of the results of the contested returns and shall
prepare a new Statement of Votes and Certificate of Canvass; and
5. Directing the Provincial Board of Canvassers to thereafter proclaim
the winning candidate for Vice-Governor of Iloilo (pp. 38-40, Rollo).
(Italics ours)
His proclamation having been nullified by the COMELEC, DUREMDES avails of this
recourse.
On 17 January 1989, the Court ordered that the status quo existing prior to the
promulgation of the above COMELEC en banc Decision be maintained until further
orders.
DUREMDES faults the COMELEC with grave abuse of discretion for having disregarded
the well-settled doctrines (1) that matters of protest, objections or issues not
originally raised before the Board of Canvassers upon the opening of the returns,
cannot be raised for the first time before the COMELEC; and (2) that after a
proclamation has been made, a pre-proclamation controversy is no longer viable, the
proper recourse, being an election protest.
It is true that, before the Board of Canvassers, PENAFLORIDA did not raise in issue the
matter of the discrepancies between the number of votes appearing in the Statement
of Votes and that in the Election Returns. As a matter of fact that matter is not even
listed as one of the issues that may be raised in pre-proclamation controversies under
Section 243 of the Omnibus Election Code.
1

Nonetheless, as aptly stated in the assailed COMELEC en banc Decision:
Indeed, errors in the Statement of Votes do not indubitably appear to be
issues that may be raised in a pre-proclamation controversy under
Section 243 of the Omnibus Election Code. In this respect, the law is
silent as to when the same may be raised. We are, however, not
unmindful of the fact that the statement of votes supports the
certificate of canvass and shall be the basis of proclamation (Sec. 231,
paragraph 2). Consequently, any error in the Statement of Votes would
affect the proclamation made on the basis thereof. The true will of the
electorate may thus be not fully and faithfully reflected by the
proclamation (at pp. 7-8).
We find no grave abuse of discretion in the foregoing COMELEC pronouncement. The
Statement of Votes is a tabulation per precinct of the votes garnered by the
candidates as reflected in the election returns. Its preparation is an administrative
function of the Board of Canvassers. As pointed out by the Solicitor General, "it is a
purely mechanical act of the Board of Canvassers in the performance of which the
Commission has direct control and supervision," pursuant to Section 227 of the
Omnibus Election Code.
Sec. 227. Supervision and control over board of canvassers. The
Commission shall have direct control and supervision over the board of
canvassers.
xxx xxx xxx
By virtue of that power, added to its overall function to "decide all questions
affecting elections" (Article IX[C] Section 2[3], 1987 Constitution), a question
pertaining to the proceedings of said Board may be raised directly with the COMELEC
as a pre-proclamation controversy.
Sec. 241. Definition. A pre-proclamation controversy refers to any
question pertaining to or affecting the proceedings of the board of
canvassers which may be raised by any candidate or by any registered
political party or coalition of political parties before the board or directy
with the Commission, or any matter raised under Sections 233, 234, 235
and 236 in relation to the exploration, transmission, receipt, custody
and appreciation of the election returns (Omnibus Election Code).
(Italics supplied).
When so elevated, the COMELEC acts in the exercise of its original jurisdiction for
which reason it is not indispensable that the issue be raised before the Board of
Canvassers during the canvassing. The COMELEC is not discharging its appellate
jurisdiction under Section 245 of the Omnibus Election Code, which has to do with
contests regarding the inclusion or exclusion in the canvass of any election returns,
with a prescribed appellate procedure to follow.
2

Cognizance may also be taken of the fact that at the time PENAFLORIDA filed the
Supplemental Petition on 20 June 1988, there was no clear-cut rule on the matter. It
was only in the COMELEC Rules of Procedure, which took effect on 15 November 1988,
wherein it was provided under subparagraph (2), paragraph (a), Section 4 of Rule 27,
that the matter of correction of the statement of votes may be the subject of a pre-
proclamation case which may be filed directly with the Commission. Nonetheless,
there should be no question, considering the aforequoted Section 241 in relation to
Section 227 of the Omnibus Election Code, that the issue is one that can be raised
directly with the COMELEC. It is a procedure that best recommends itself specially
considering that the Statement of Votes is a vital component in the electoral process.
It supports the Certificate of Canvass and is the basis for proclamation.
SEC. 231. Canvass by the board.
xxx xxx xxx
The respective board of canvassers shall prepare a certificate of canvass
duly signed and affixed with the imprint of the thumb of the right hand
of each member, supported by a statement of the votes received by
each candidate in each polling place and, on the basis thereof, shall
proclaim as elected the candidates who obtained the highest number of
votes cast in the province, city, municipality or barangay. Failure to
comply with this requirement shall constitute an election offense.
xxx xxx xxx
DUREMDES also calls attention to Rule 13, Section 1 (g) of the COMELEC Rules of
Procedure, which does not allow the filing of supplemental pleadings. As stated
heretofore, however, these Rules took effect only on 15 November 1988, or five
months after the Supplemental Petition was filed. Said rule, therefore, cannot be
given retroactive effect the legal truth being that laws of procedure may be
retroactively applied provided no substantial rights are impaired (Bernardo vs. Court
of Appeals, G.R. No. 30821, December 14,1988).
That discrepancies exist between the entries in the Statement of Votes and that
reflected in the questioned election returns, was openly admitted by the Chairman of
the Board of Canvassers at the scheduled promulgation on 15 December 1988 of the
9th and 10th placers of the Sangguniang Panlalawigan (p. 6, COMELEC Decision). What
is more, it is also admitted by the parties except that PENAFLORIDA assails the
correctness of the Statement of Votes, while DUREMDES maintains its correctness but
avers the possibility of the tampering of the questioned election returns (p. 7, Ibid.).
Under the circumstances, therefore, and considering that any error in the Statement
of Votes would affect the proclamation made on the basis thereof, and primordially,
in order to determine the true will of the electorate, the COMELEC Decision ordering
the Board of Canvassers to reconvene and prepare a new Statement of Votes and
Certificate of Canvass should be upheld.
The Commission on Elections has ample power to see to it that elections
are held in a clean and orderly manner and it may decide all questions
affecting the elections. It has original jurisdiction on all matters relating
to election returns, including the verification of the number of votes
received by opposing candidates in the election returns as compared to
the statement of votes in order to insure that the true will of the people
is known. Such clerical error in the statement of votes can be ordered
corrected by the COMELEC (Villaroya vs. Comelec, L-79646- 47,13
November 1987,155 SCRA 633).
It is DUREMDES' further submission that his proclamation could not be declared null
and void because a pre-proclamation controversy is not proper after a proclamation
has been made, the proper recourse being an election protest. This is on the
assumption, however, that there has been a valid proclamation. Where a
proclamation is null and void, the proclamation is no proclamation at all and the
proclaimed candidate's assumption of office cannot deprive the COMELEC of the
power to declare such nullity and annul the proclamation (Aguam vs. COMELEC, L-
28955, 28 May 1968, 23 SCRA 883).
DUREMDES' proclamation must be deemed to have been null and void. It was made on
31 January 1988 after PENAFLORIDA had filed with the COMELEC on 29 January 1988
an "Appeal by Way of a Petition for Review" from the rulings of the Board, and on 30
January 1988, a Petition for the annulment of' election returns and the suspension of
the proclamation of any candidate (SPC Case No. 88-448). The COMELEC had not
resolved either Petition at the time the proclamation was made. Pursuant to Sections
245, supra, and 238 of the Omnibus Election Code, therefore, the Board of Canvassers
should not have proclaimed any candidate without waiting for the authorization by
the COMELEC. Any proclamation thus made is void ab initio.
SEC. 238. Canvass of remaining or unquestioned returns to continue.
In cases under Sections 233, 234, 235 and 236 hereof, the board of
canvassers shall continue the canvass of the remaining or unquestioned
election returns. If, after the canvass of all the said returns, it should be
determined that the returns which have been set aside will affect the
result of the election, no proclamation shall be made except upon orders
of the Commission after due notice and hearing. Any proclamation made
in violation hereof shall be null and void.
In this case, with 110 contested election returns and 25,930 ballots questioned
(COMELEC Resolution, September 20,1988, p. 4, p. 115, Rollo), DUREMDES' margin of
7,286 non-contested votes could very well be off-set.
Moreover, DUREMDES' proclamation was made on the basis of an official canvass of
the votes cast in 2,377 precincts only (Annex "N," Petition), when there were actually
2,487 precincts. The votes in 110 precincts, therefore, were not included, which is
exactly the number of 110 election returns questioned by PENAFLORIDA. Further,
DUREMDES was certified to have garnered 157,361 votes (ibid.), which number
represents the non-contested votes only, and clearly excludes the totality of the
"contested/deferred votes" of the candidates concerned.
DUREMDES' proclamation having been based on an incomplete canvass, no grave abuse
of discretion can be ascribed to the COMELEC for directing the Provincial Board of
Canvassers of Iloilo "to immediately reconvene and to include in the canvass of votes
for Vice-Governor the questioned/contested returns." All the votes cast in an election
must be considered because to disregard returns is in effect to disenfranchise the
voters (Mutuc vs. COMELEC, L-28517, February 21, 1968, 22 SCRA 662). A canvass can
not be reflective of the true vote of the electorate unless all returns are considered
and none is omitted (Datu Sinsuat vs. Pendatun, L-31501, June 30, 1970, 33 SCRA
630).
Over and above all else, the determination of the true will of the electorate should be
the paramount consideration.
Election contests involve public interest. Technicalities and procedural
barriers should not be allowed to stand if they constitute an obstacle to
the determination of the true will of the electorate in the choice of
their elective officials ... Laws governing election contests must be
liberally construed to the end that the will of the people in the choice of
public officials may not be defeated by mere technical objections. In an
election case the court has an imperative duty to ascertain by all means
within its command who is the real candidate elected by the electorate"
(Juliano vs. CA and Sinsuat, 20 SCRA 808, 818-19, July 28,1967).
WHEREFORE, absent any grave abuse of discretion on the part of respondent
Commission on Elections, this Petition for certiorari is hereby DISMISSED. The status
quo Order heretofore issued is hereby ordered LIFTED. No costs.
SO ORDERED.


EN BANC

G.R. No. 110347 February 4, 1994
DATU PIKE T. MENTANG, petitioner,
vs.
THE COMMISSION ON ELECTIONS AND ALI BERNAN, respondents.
Pedro Q. Cuadra for petitioner.
Romulo Macalintal and Blo Umpar Adiong for private respondent.

VITUG, J.:
Assailed in this petition for certiorari, with prayer for the issuance of a temporary
restraining order and writ of preliminary injunction, is the Resolution of public
respondent Commission on Elections ("COMELEC") En Banc, dated
8 July 1993, (a) holding that it has jurisdiction to decide a "Petition to Correct
Manifest Error and Annul the Proclamation of Respondent (herein petitioner) and/or
Suspend the Effects of Such Proclamation" and (b) directing the implementation of
the COMELEC's Order of 23 April 1993 for the re-tabulation of the votes for the herein
petitioner and the private respondents as reflected in the copies of the "Statement of
Votes by Precinct Per Municipality" in the ten municipalities of Maguindanao and as
transmitted to the COMELEC, the Regional Board of Canvassers, and the Provincial
Board of Canvassers of Maguindanao.
Pursuant to Section 1 of Republic Act ("R.A.") No. 7647, entitled "AN ACT PROVIDING
FOR THE DATE OF REGULAR ELECTIONS FOR REGIONAL GOVERNOR, VICE-GOVERNOR
AND MEMBERS OF THE REGIONAL LEGISLATIVE ASSEMBLY OF THE AUTONOMOUS
REGION IN MUSLIM MINDANAO ("ARMM") AND FOR OTHER PURPOSES," the ARMM regular
elections were scheduled for, and held on, 25 March 1993. Among the contenders for
one of the elective positions in the Regional Legislative Assembly were herein
petitioner Datu Pike Mentang and private respondent Datu Ali Bernan. After the
elections and the canvassing of the election returns by the Provincial Board of
Canvassers of Maguindanao, the petitioner and the private respondent were locked for
the third slot in the Regional Assembly of the Second District of Maguindanao.
In the evening of 25 March 1993, the Provincial Board of Canvassers ("PBC") initiated
the canvassing of the election returns. On 28, March 1993, the final tabulation of the
votes for all the candidates in the first and second districts of Maguindanao was
concluded. On even date, the PBC certified that the petitioner was the third and last
winning candidate for Regional Assemblyman in the Second District of Maguindanao
with 55,212 votes as against private respondent's 52,808 votes.
1
The petitioner was
then proclaimed among the duly elected members of the Regional Legislative
Assembly.
2
On 31 March 1993, he took his oath of office.
3

The private respondent came to know of petitioner's proclamation on
28 March 1993 (a Sunday). The following day, 29 March 1993, he went to the Office of
the Provincial Board of Canvassers for the purpose of showing his personal tally sheets
which revealed that he should be credited with 57,248 votes and not just 52,808
votes. Unfortunately, only the Acting Provincial Election Supervisor, Arturo Cocjin,
was available since the PBC Chairman and its two (2) members had already departed
from Maguindanao.
On 2 April 1993, or on the fifth day following the proclamation, the private
respondent sent two (2) FAX message
4
to COMELEC Chairman Christian Monsod and to
Commissioner Regalado Maambong, who was specifically in-charge of the elections in
Maguindanao, to the effect that he
(the private respondent) was going to file a "Petition for Correction of Error and To
Set Aside the Proclamation" of the petitioner on the ground that the Statement of
Votes by Precinct indicated that he garnered more votes than petitioner's 55,212
votes. It was only on 5 April 1993, however, when the COMELEC his petition,
denominated as a "Petition to Correct Manifest Error and Annul the Proclamation of
the Respondent (herein petitioner) and/or Suspend the Effects of the such
Proclamation" and docketed as SPC
No. 93-004. In his above petition, the herein private respondent contended that he
garnered a total of 57,248 while the herein petitioner was correctly credited with
55,212 votes, based on the statement of votes by precinct per municipality (Serial No.
CEF 20-A), viz:
Serial No. No. of Votes obtained
Municipality of CEF 20-A Precincts BERNAN MENTANG
canvassed
1. Datu Paglas 780603 4,943 221
780604 56 3,898 248
2. Gen. SK 780617 3,464 476
Pendatun 780618 63 2,864 260
3. Maganoy 780621 466 740
780622 1,417 1,927
780623 1,530 2,061
780624 1,413 1,908
780625 158 1,212 1,678
4. Pagalungan 780634 2,214 1,018
780633 4,472 1,483
780632 3,169 2,759
780631 119 2,840 3,442
5. South Upi 780639 567 651
780640 61 361 429
6. Buluan 780600 1,807 138
780599 3,434 197
780598 85 2,618 420
7. Datu Piang 780611 587 2,976
780612 571 2,901
780613 912 2,226
780614 901 2,215
780615 540 2,076
780729 5 95
780616 170 382 580
8. Sultan sa 780646 1,782 1,285
Barungis 780647 1,785 1,693
780648 79 402 684
9. Amptuan 780587 244 697
780588 914 1,707
780589 1,295 627
780590 103 303 113
10. Talayan 780653 1,563 5,483
780654 506 4,614
780655 1,577 4,291
780656 104 290 893

T o t a l 998 57,248 55,212
Asserting that there was just a clear mathematical mistake in the computation of his
votes by the Provincial Board of Canvassers, the private respondent asked the
COMELEC, in fine, to annul the proclamation of the petitioner and to have him (the
private respondent) proclaimed instead as being among the three winning candidates
for Assemblymen in the 25th March 1993 elections.
The petitioner, in this answer filed on 22 April 1993, questioned the COMELEC's
jurisdiction to hear and decide the petitioner for having been filed late on 5 April
1993. He averred that the private respondent's petitioner with the COMELEC, being a
pre-proclamation case that relates to the correction of manifest errors in the
certificate of canvass, should have been filed within the reglementary period of five
(5) days counted from the petitioner's proclamation on 28 March 1993.
On 23 April 1993, COMELEC Chairman Christian Monsod issued an order, directing the
re-tabulation of the votes. The implementation of the said order, however, was held
in abeyance by a subsequent order of 27 April 1993 of Chairman Monsod pending the
COMELEC's ruling on the issue of jurisdiction raised by the petitioner.
On 8 June 1991, the COMELEC, following an en banc hearing, rendered the challenged
resolution, containing the following dispositions:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Commission holds
that the petition to annual proclamation on the ground of mistake in the
addition of votes was filed on time. Accordingly, the Commission has
jurisdiction over the same in the exercise of its broad administrative
powers over the conduct of elections.
The Clerk of the Commission is thus directed to immediately cause the
implementation of the Order, dated 23 April 1993, for the retabulation
of the votes reflected in the three (3) copies of the Statement of Votes
by Precinct Per Municipality copies for the Provincial Board of
Canvassers/Regional Board of Canvassers/Commission on Elections of
the ten (10) municipalities of the Second District of the Province of
Maguindanao, and for the three canvassing committee organized under
said Order to report to the Commission the results of their retabulation
within three (3) days from receipt of this Resolution. Thereafter, the
Commission will resolve the main petition.
The above resolution was reached by a majority vote. Chairman Christian Monsod,
Commissioners Magadara Dimaampao, Regalado Maambong and Manolo Gorospe voted
affirmatively while Commissioners Remedios Fernando and Graduacio Claravall
dissented. Commissioner Vicente De Lima, on his part, opined that while the petition
was filed beyond the five-day period, he was, nevertheless, voting for COMELEC's
assumption of jurisdiction and treating the petition as a regular election protest.
On 14 June 1993, the present petition was filed. A temporary restraining order was
issued by this Court on 17 June 1993, directing the public respondent "to cease and
desist from implementing and/or executing its resolution of 8 June 1993 issued in SPC
No. 93-004.
5

The threshold issue is whether or not the COMELEC has committed grave abuse of
discretion in holding that it has lawful jurisdiction to decide the "petition to correct
manifest error and annul the proclamation of (petitioner) and/or suspend the effects
of such proclamation."
The petitioner contends that the petition submitted to the COMELEC is a pre-
proclamation controversy, which should have been filed within five (5) days after his
proclamation, conformably with Section 5, Rule 27, of the Comelec Rules of
Procedure. He insists that the petition refers to corrections of manifest errors in the
certificate of canvass, and not to an annulment of his proclamation, by the Provincial
Board of Canvassers of Maguindanao.
In holding, however, that it has validly assumed jurisdiction over the petition, the
COMELEC has explained, thus:
. . . (A) reading of the petition shows that it is not a petition for
correction of manifest Errors. While it is designated as Petition to
Correct Manifest Error and Annul the Proclamation of the Respondent
and/or Suspend the Effects of such Proclamation, in reality, it is a
petition for annulment of proclamation alleging mistake in addition.
Correction of manifest errors, has reference to errors in the election
returns, in the entries of the statement of votes by precinct per
municipality, or in the certificate of canvass.
In the instant case, no error has been alleged in any of the three
election documents. The certificate of canvass and proclamation
contains only the votes of the three (3) Regional Assemblymen who
where proclaimed winners for the Second District of Maguindanao.
Naturally, the name and votes of the petitioner is not reflected therein
because he was not one of those proclaimed.
If there is error at all as alleged it cannot be seen from the face of these
election documents because allegedly it is error in addition which could
only be made manifest if a mathematical computation of all the votes is
undertaken on the basis of statement of votes by precinct of the ten (10)
municipalities, submitted in evidence.
The distinction between a petition for annulment of proclamation and a
petition to correct manifest errors is relevant because a petition for
correction of manifest errors is time-bound by a reglementary period
not later than five (5) days following the date of proclamation if filed
directly with the Commission in an applicable situation.
On the other hand, a petition, for annulment of proclamation (more
correctly, a petition for declaration of nullity of proclamation) is not
delimited by the five-day rule. In fact, there is nothing in the law or the
Comelec rules which prescribe the reglementary period for such a
petition.
Surely, however, it should be filed within a reasonable time. If a losing
party in an election has ten (10) days from proclamation within which to
file an election protest or a quo warranto petition, such a period is
reasonable enough for filing a petition to annul (or declare as nullity) a
proclamation.
Thus, in the Solidum case, decided under the election law then in force
in 1969, the Supreme court ruled that the remedy of mandamus for the
purpose of correcting an election return which may be authorized by a
competent court (or the Comelec), to compel a board of canvassers to
reassemble and make a correct canvass of all returns, may be availed of
within the two-week period (now within ten [10] days after the
proclamation of the results of the election) "within which an election
may be contested" and that this period is jurisdictional, for the reason
that after the lapse of that period "the right of the candidate proclaimed
to the office is deemed vested" . . .
If proclamations are annulled because of mistakes in election returns, or
because of incomplete returns, with more reason should a proclamation
be annulled, as in this case, where there is a mistake in the addition of
votes which do not even require a correction of any election document."
(Footnotes omitted.)
We find no error, let alone grave abuse of discretion, on the part of COMELEC in its
above pronouncements. While the petition has prayed for the correction of
mathematical or mechanical errors, such errors, however, are not attributed to
incorrect entries in any of the election returns, statement of votes and certificate of
canvass but in the mere computation of the votes reflected in those election
documents. The petition, evident by its captain and substance, has truly sought the
declaration of nullity of petitioner's proclamation. The filing of the petition on 5 April
1993, following petitioner's proclamation on 28 March 1993, is well within the ten-day
period required for the purpose. This Court has held that the filing of a petition to
annul a proclamation suspends the running of the ten-day period within which to file
an election protest or a petition for quo warranto,
6
provided that there are
allegations which, when proved, will render the proclamation null and void.
7
Such
petition may be filed directly with the COMELEC even as a pre-proclamation
controversy provided that it is done within ten (10) days following the proclamation.
The petitioner argues that after proclamation and assumption of office, a pre-
proclamation controversy is no longer viable. Indeed, we are aware of cases holding
that pre-proclamation controversies may no longer be entertained by the COMELEC
after the winning candidate has been proclaimed.
8
This rule, however, is premised on
an assumption that the proclamation is valid. Where a proclamation is null and void,
the proclamation is no proclamation at all and the proclaimed candidate's assumption
of office cannot deprive the COMELEC of the power to make such declaration of
nullity.
9

The petitioner insists that Section 3 of Republic Act No. 7647 prohibits the filing of a
pre-proclamation case for annulment of proclamation in the ARMM elections. The law
reads:
Sec. 3. Pre-Proclamation Cases. No Pre-proclamation cases shall be
allowed on matters relating to the preparation, transmission, receipt,
custody, and appreciation of election returns or the certificates of
canvass, as the case may be. However, this does not preclude the
authority of the appropriate canvassing body, motu proprio or upon
written complaint of an interested person to correct manifest errors in
the certificate of canvass or election returns before it.
Questions affecting the composition or proceeding of the board of
canvassers may be initiated in the board or directly with the Comelec in
accordance with Section 19 of Republic Act No. 7166.
Any objection on the election returns before the provincial board of
canvassers or certificate of canvass before the regional board of
canvassers, shall be specifically noted in the minutes of their respective
proceedings.
The abovequoted section neither expressly nor impliedly disallows the filing of a
petition for annulment of proclamation. On contrary, Section 5 thereof
(R.A. 7647) has expressed the applicability to it of the provisions of the Election
Code.
Not to be missed is the following observation made by COMELEC,
thus
. . . Parenthetically, there was no categorical denial on record of the
allegation that petitioner (herein private respondent) garnered more
votes than the respondent. Both respondent and his counsel simply
refused to comment on the truth or falsity of the allegation of the
petitioner except to say that they rely on the accuracy of the tabulation
of the Provincial Board of Canvassers of Maguindanao which was the
basis of respondent's proclamation. But precisely, the correctness of the
tabulation of the petitioner's votes has been put in issue. Confronted
with the fact that his wife secured photocopies of the statement of
votes by precinct of the ten (10) municipalities of the Second district of
Maguindanao (PBC copy) with the consent of the Provincial Election
Supervisor of Maguindanao respondent, upon queries from the
Commission, informed that he did not know whether his wife tabulated
the votes of the petitioner (herein private respondent), and he did not
know the result of the tabulation if any was made. Such answer runs
counter to human nature and reflects lack of candor, an attitude
deserving only of reproof.
Both respondent and his counsel are, however, one in saying that the
Commission has no jurisdiction because the petition to correct manifest
errors has been filed out of time. This position is not particularly
abhorrent, given the Comelec rules relied upon, but they should be
reminded that like court actions, election matters should not be treated
as "games of technicalities in which one more deeply schooled and
skilled in the subtle act of movements and position, entraps and destroys
the other or like a duel (to be) won by a rapier's thrust." . . .
Given the manifest injustice to the petitioner if his allegation of mistake
in addition is indeed true, the Commission even considered the exercise
of its power to suspend its rules under the provisions of Rule 1, Section 4
of the Comelec Rules of Procedure in much the same way that the
Supreme Court can suspend its own rules or to except a particular case
from its operation whenever the purposes of justice require it. Under
this authority, the Commission is similarly enabled to cope with all
situations without concerning itself about procedural niceties that do
not square with the need to do justice, in any case without further loss
of time, provided that the right of the parties to a full day in court is not
substantially impaired. (Footnotes omitted.)
We take further note that the reports
10
submitted to Chairman Monsod by Dir. Romeo
Cacamindin, Dir. Resurreccion Borra and Dir. Ernesto Herrera, in implementing the re-
tabulation order of 23 April 1993 (made prior to the issuance of a temporary
restraining order by this Court), show the private respondent to have actually
obtained 57,371 votes, against petitioner's 55,212 votes.
In Tatlonghari vs. COMELEC,
11
citing Juliano vs. Court of Appeals,
12
the Court,
through Mr. Justice Abdulwahid A. Bidin, reiterated:
Election contests involve public interest, and technicalities and
procedural barriers should not be allowed to stand if they constitute an
obstacle to the determination of the true will of the electorate in the
choice of their elective officials. . . . Laws governing election contests
must be liberally construed to the end that the will of the people in the
choice of public officials may not be defeated by mere technical
objections. In an election case, the court has an imperative duty to
ascertain by all means within its command who is the real candidates
elected by the electorate.
Above and beyond all, the determination of the true will of the electorate should be
paramount. It is their voice, not ours or of anyone else, that must prevail. This, in
essence, is the democracy we continue to hold sacred.
WHEREFORE, the petition is DISMISSED for failure to show grave abuse of discretion on
the party of the Commission on Elections. The case is thus REMANDED to the said
public respondent to proceed with dispatch in resolving the main petition in SPC No.
93-004. The temporary restraining order heretofore issued by this Court is LIFTED. No
costs.
SO ORDERED.



EN BANC

G.R. Nos. 111624-25 March 9, 1995
ALFONSO C. BINCE, JR., petitioner,
vs.
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF PANGASINAN,
MUNICIPAL BOARDS OF CANVASSERS OF TAYUG AND SAN MANUEL, PANGASINAN
AND EMILIANO MICU,respondents.

KAPUNAN, J.:
Petitioner Alfonso C. Bince, Jr. and private respondent Emiliano S. Micu were among
the candidates in the synchronized elections of May 11, 1992 for a seat in
the Sanguniang Panlalawigan of the Province of Pangasinan allotted to its Sixth
Legislative District.
Ten (10) municipalities, including San Quintin, Tayug and San Manuel, comprise the
said district.
During the canvassing of the Certificates of Canvass (COC's) for these ten (10)
municipalities by respondent Provincial Board of Canvassers (PBC) on May 20, 1992,
private respondent Micu objected to the inclusion of the COC for San Quintin on the
ground that it contained false statements. Accordingly, the COCs for the remaining
nine (9) municipalities were included in the canvass. On May 21, 1992, the PBC rules
against the objection of private respondent.
1
From the said ruling, private
respondent Micu appealed to the Commission on Elections (COMELEC), which docketed
the case as SPC No. 92-208.
On June 6, 1992, the COMELEC en banc promulgated a resolution which reads:
Acting on the appeal filed by petitioner-appellant Atty. Emiliano S. Micu
to the ruling of the Provincial Board of Canvassers of Pangasinan, dated
May 21, 1992, the Commission en banc tabulated the votes obtained by
candidates Atty. Emiliano S. Micu and Atty. Alfonso C. Bince for the
position of Sangguniang Panlalawigan member of the province of
Pangasinan, using as basis thereof the statement of votes by precinct
submitted by the municipality of San Quintin, Pangasinan, as (sic) a
result of said examination, the Commission rules, as follows:
1. That the actual number of votes obtained by candidate
Alfonso C. Bince in the municipality of San Quintin,
Pangasinan is 1,055 votes whereas petitioner/appellant
Atty. Emiliano S. Micu obtained 1,535 votes for the same
municipality.
Accordingly, the Provincial Board of Canvassers for the province of
Pangasinan is directed to CREDIT in favor of petitioner/appellant Atty.
Emiliano S. Micu with 1,535 votes and candidate Alfonso C. Bince with
1,055 votes in the municipality of San Quintin, Pangasinan.
2

Twenty-one (21) days after the canvass of the COCs for the nine (9) municipalities was
completed on May 20, 1992, private respondent Micu together with the Municipal
Boards of Canvassers (MBCs) of Tayug and San Manuel filed with the PBC petitions for
correction of the Statements of Votes (SOVs) earlier prepared for alledged manifest
errors committed in the computation thereof.
In view of the motion of herein petitioner to implement the Resolution of June 6,
1992 which was alleged to have become final, the PBC, on June 18, 1992, credited in
favor of the petitioner and private respondent the votes for each as indicated in the
said resolution and on the basis of the COCs for San Quintin and the other nine (9)
municipalities, petitioner had a total of 27,370 votes while the private respondent
had 27,369 votes. Petitioner who won by a margin of 1 vote was not, however,
proclaimed winner because of the absence of authority from the COMELEC.
Accordingly, petitioner filed a formal motion for such authority.
On June 29, 1992, the COMELEC en banc promulgated a Supplemental
Order
3
directing the PBC "to reconvene, continue with the provincial canvass and
proclaim the winning candidates for Sangguniang Panlalawigan for the Province of
Pangasinan, and other candidates for provincial offices who have not been
proclaimed
4
as of that date.
In the meantime, on June 24, 1992, the PBC, acting on the petitions for correction of
the SOVs of Tayug and San Manuel filed by private respondent and the MBCs of the
said municipalities, rules "to allow the Municipal Boards of Canvassers of the
municipalities of Tayug and San Manuel, Pangasinan to correct the Statement of Votes
and Certificates of Canvass and on the basis of the corrected documents, the Board
(PBC) will continue the canvass and thereafter proclaim the winning candidate.
5

On June 25, 1992, petitioner Bince appealed from the above ruling allowing the
correction alleging that the PBC had no jurisdiction to entertain the petition. The
appeal was docketed as SPC No. 92-384.
On July 8, 1992, private respondent Micu filed before the COMELEC an urgent motion
for the issuance of an order directing the PBC to reconvene and proceed with the
canvass. He alleged that the promulgation of COMELEC Resolution No. 2489 on June
29, 1992 affirmed the ruling of the PBC dated June 24, 1992. Similarly, petitioner
Bince filed an urgent petition to cite Atty. Felimon Asperin and Supt. Primo. A. Mina,
Chairman and Member, respectively, of the PBC, for Contempt with alternative prayer
for proclamation as winner and Injunction with prayer for the issuance of Temporary
Restraining Order (TRO).
On July 9, 1992, the PBC Chairman, Atty. Felimon Asperin, filed a petition with the
COMELEC seeking a "definitive ruling and a clear directive or order as to who of the
two (2) contending parties should be proclaimed"
6
averring that "there were
corrections already made in a separate sheet of paper of the Statements of Votes and
Certificates of Canvass of Tayug and San Manuel, Pangasinan which corrections if to
be considered by the Board in its canvass and proclamation, candidate Emiliano will
win by 72 votes. On the other hand, if these corrections will not be considered,
candidate Alfonso Bince, Jr. will win by one (1) vote.
7
On even date, the COMELEC
promulgated its resolution, the dispositive portion of which reads:
(1) To RECONVENE immediately and complete the canvass of the
Certificates of Votes, as corrected, of the municipalities comprising the
6th District of Pangasinan;
(2) To PROCLAIM the winning candidate for Member of the provincial
Board, 6th District of Pangasinan, on the basis of the completed and
corrected Certificates of Canvass, aforesaid; in accordance with the law,
the rules and guidelines on canvassing and proclamation.
8

As directed therein, the PBC on July 21, 1992, by a vote of 2-1 with its Chairman Atty.
Felimon Asperin dissenting, proclaimed candidate Bince as the duly elected member
of the Sangguniang Panlalawigan of Pangasinan. Assailing the proclamation of Bince,
private respondent Micu filed an Urgent Motion for Contempt and to Annul
Proclamation and Amended Urgent Petition for Contempt and Annul Proclamation on
July 22 and 29, 1992, respectively, alleging that the PBC defied the directive of the
COMELEC in its resolution of July 9, 1992. Acting thereon, the COMELEC promulgated
a resolution on July 29, 1992, the decretal portion of which reads:
The Commission RESOLVED, as it hereby RESOLVES:
1. To direct Prosecutor Jose Antonio Guillermo and Supt. Primo Mina,
vice-chairman and secretayr, respectively, of the Provincial Board of
Canvassers of Pangasinan, to show cause why they should not be
declared in contempt of defying and disobeying the Resolution of this
Commission dated 09 July 1992, directing them to RECOVENE
immediately and complete the canvass of the Certificates of Votes as
corrected, of the Municipal Boards of Canvassers of the Municipalities
comprising the 6th District of Pangasinan; and to PROCLAIM the winning
candidate of the Provincial Board, 6th District of Pangasinan, on the
basis of the completed and corrected Certificates of Canvass, aforesaid;
instead they excluded the corrected Certificated of Canvass of the
Municipal Boards of Canvassers of Tayug and San Manuel, Pangasinan;
2. To ANNUL the proclamation dated 21 July 1992, by the said Provincial
Board of Canvassers (dissented by Chairman Felimon Asperin), of
candidate Alfonso Bince;
3. To DIRECT the Provincial Board of Canvassers to recovene
immediately and proclaim the winning candidate for the second position
of the Provincial Board, 6th District of Pangasinan, on the basis of the
completed and corrected Certificates of Canvass submitted by the
Municipal Boards of Canvassers of all the municipalities in the 6th
District of Pangasinan, in accordance with law.
9

Consequently, petitioner filed a special civil action for certiorari before this Court
seeking to set aside the foregoing resolution of the COMELEC, contending that the
same was promulgated without prior notice and hearing with respect to SPC No. 92-
208 and SPC No. 92-384. The case was docketed as G.R. No. 106291.
On February 9, 1993, the Court en banc
10
granted the petition ratiocinating that:
Respondent COMELEC acted without jurisdiction or with grave abuse of
discretion in annulling the petitioner's proclamation without the
requisite due notice and hearing, thereby depriving the latter of due
process. Moreover, there was no valid correction of the SOVs and COCs
for the municipalities of Tayug and San Manuel to warrant the
annullment of the petitioner's proclamation.
1. Petitioner had been proclaimed, had taken his oath of office and had
assumed the position of the second elected member of the Sangguniang
Panlalawigan of the Province of Pangasinan for its Sixth Legislative
District. Such proclamation enjoys the presumption of regularly and
validity. The ruling of the majority of the PBC to proclaim the petitioner
is based on its interpretation of the 9 July 1992 Resolution of respondent
COMELEC which does not expressly single out the corrected COCs of
Tayug and San Manuel; since, as of that time, the only corrected COC
which existed was that for San Quintin, which was made by the PBC on
18 June 1992, the majority of the PBC cannot be faulted for ruling the
way it did. the 9 July 1992 Resolution (Rollo, p. 51) merely directed it:
(1) To RECOVENE immediately and complete the canvass of
the Certificates of Votes, as corrected, of the Municipal
Boards of Canvassers of the municipalities comprising the
6th District of Pangasinan;
(2) To PROCLAIM the winning candidate for Member of the
Provincial Board, 6th District of Pangasinan, on the basis of
the completed and corrected Certificates of Canvass,
aforesaid; in accordance with the law, the rules and
guideline on canvassing and proclamation. (Emphasis
supplied)
The PBC thus had every reason to believe that the phrase "completed
and corrected" COCs could only refer to the nine 99) COCs for the nine
municipalities, canvass for which was completed on 21 May 1992, and
that of San Quintin, respectively. Verily, the above resolution is vague
and ambiguous.
Petitioner cannot be deprived of his office without due process of law.
Although public office is notproperty under Section 1 of the Bill of Rights
of the Constitution (Article III, 1987 Constitution), and one cannot
acquire a vested right to public office (CRUZ, I.A., Constitutional Law,
1991 ed., 101), it is, nevertheless, a protected right (BERNAS J., The
Constitution of the Republic of the Philippines, vol. I, 1987 ed.,
40, citing Segovia vs. Noel, 47 Phil. 543 [1925] and Borja vs. Agoncillo,
46 Phil. 432 [1924]). Due process in proceedings before the respondent
COMELEC, exercising its quasi-judicial functions, requires due notice and
hearing, among others. Thus, although the COMELEC possesses, in
appropriate cases, the power to annul or suspend the proclamation of
any candidate (Section 248, Omnibus Election Code [B.P. Blg. 881]), We
had ruled in Farinas vs. Commission on Elections (G.R. No. 81763, 3
March 1988), Reyes vs. Commission on Elections G.R. No. 81856, 3 March
1988) and Gallardo vs. Commission on Elections (G.R. No. 85974, 2 May
1989) that the COMELEC is without power to partially or totally annul a
proclamation or suspend the effects of a proclamation without notice
and hearing.
xxx xxx xxx
Furthermore, the said motion to annul proclamation was treated by the
respondent COMELEC as a Special Case (SPC) because its ruling therein
was made in connection with SPC No. 92-208 and SPC No. 92-384. Special
Cases under the COMELEC RULES OF PROCEDURE involve the pre-
proclamation controversies (Rule 27 in relation to Section 4(h)l Rule 1,
and Section 4, Rule 7). We have categorically declared in Sarmiento
vs. Commission on Elections (G.R. No. 105628, and companion cases, 6
August 1992) that pursuant to Section 3, Article IX-C of the 1987
Constitution, . . . the commission en banc does not have jurisdiction to
hear and decide pre-proclamation cases at the first instance. Such cases
should first be referred to a division
Hence, the COMELEC en banc had no jurisdiction to decide on the
aforesaid to annul the proclamation; consequently, its 29 July 1992
Resolution is motion is null and void. For this reason too, the
COMELEC en banc Resolution of 6 June 1992 in SPC No. 92-2()8 resolving
the private respondent's appeal from the ruling of the PBC with respect
to the COC of San Quintin is similarly void.
2. It is to be noted, as correctly stressed by the petitioner, that there
are no valid corrected Statements of Votes and Certificates of Canvass
for Tayug and San Manuel; thus, any reference to such would be clearly
unfounded. While it may be true that on 24 June 1992, the PBC, acting
on simultaneous petitions to correct the SOVs and COCs for Tayug and
San Manuel ordered the MBCs for these two (2) municipalities to make
the appropriate corrections in the said SOVs and their corresponding
COCs, none of said Boards convened to the members of actually
implement the order. Such failure could have been due to the appeal
seasonably interposed by the petitioner to the COMELEC or the fact that
said members simply chose not to act thereon. As already adverted to
the so-called "corrected" Statements of Votes and Certificates of Canvass
consist of sheets of paper signed by the respective Election Registrars of
Tayug (Annex "F-l" of Comment of private respondent; Annex "A" of
Consolidated Reply of petitioner) and San Manuel (Annex "F-2, Id.; Annex
"B", Id.). These are not valid corrections because the Election Registrars,
as Chairmen of the MBCs cannot, by themselves, act for their Section
225 of the respective Board. Section 225 of the Omnibus Election Code
(B.P. Blg. 881) provides that "[A] majority vote of all the members of the
board of canvassers shall be necessary to render a decision." That
majority means at least two (2) of the three (3) members constituting
the Board (Section 20(c) of the Electoral Reforms Law of 1987 (R.A. No.
6646) provides that the "municipal board of canvassers shall be
composed of the election registrar or a representative of the
Commission, as chairman, the municipal treasurer, as vice-chairman,
and the most senior district school supervisor or in his absence a
principal of the school district or the elementary school, as members").
As to why the Election Registrars, in their capacities as Chairmen, were
7th only ones who prepared the so-called correction sheets, is beyond
Us. There is no showing that the other members of the Boards were no
longer available. Since they are from the Province of Pangasinan, they
could have been easily summoned by the PBC to appear before it and
effect the corrections on the Statements of Votes and Certificates of
Canvass.
Besides, by no stretch of the imagination can these sheets of paper be
considered as the corrected SOVs and COCs. Corrections in a Statement
of Vote and a Certificate of Canvass could only be accomplished either
by inserting the authorized corrections into the SOV and COC which were
originally prepared and submitted by the MBC or by preparing a new SOV
and COC incorporating therein the authorized corrections. Thus, the
statement in the 29 July 1992 Resolution of the COMELEC referring to
"the Certificates of Canvass of the municipal Boards of Canvassers of
Tayug and San Manuel" (Last clause, paragraph 1 of the dispositive
portion, Annex "A" of Petition: Rollo15), is palpably unfounded. The
Commission could have 7 been misled by Atty. Asperin's ambiguous
reference to "corrections already made in separate sheets of paper of
the Statements of Votes and Certificate of Canvass of Tayug and San
Manuel, Pangasinan" (Quoted in the Resolution of 9 July 1992; Id., 50-
51), in his petition asking the COMELEC to rule on who shall be
proclaimed. However, if it only took the trouble to carefully examine
what was held out to be as the corrected documents, respondent
COMELEC should not have been misled.
Even if We are to assume for the sake of argument that these sheets of
paper constitute sufficient corrections, they are, nevertheless, void and
of no effect. At the time the Election Registrars prepared them on 6
July 1992 respondent COMELEC had not yet acted on the petitioner's
appeal (SPC No. 92-384) from the 24 June 1992 ruling of the PBC
authorizing the corrections. Petitioner maintains that until now, his
appeal has not been resolved. The public respondent, on the other hand,
through the Office of the Solicitor General, claims that the same had
been:
. . . resolved in the questioned resolution of July 29, 1992,
where COMELEC affirmed respondents (sic) Board's
correction that petitioner only received 2,415 votes in
Tayug and 2,179 in San Manuel (see p. 2, Annex "A",
Petition) (Rollo, p. 71)
On the same matter, the private respondent asserts that:
This SPC-92-384, is however, deemed terminated and the
ruling of the PBC is likewise deemed affirmed by virtue of
the 2nd par., Sec. 16, R.A. No. 7166, supra and Comelecen
banc Resolution No. 2489, supra, dated June 29, 1992 (Id.,
36);
If We follow the respondent COMELEC's contention to its logical
conclusion, it was only on 29 July 1992 that SPC No. 92-384 was
resolved; consequently, the so-called "correction sheets" were still
prematurely prepared. In any event, the COMELEC could not have validly
ruled on such appeal in its 29 July 1992 Resolution because the same was
promulgated to resolve the Urgent Motion For Contempt and to Annul
Proclamation filed by the private respondent. Furthermore, before the
resolution of SPC No. 92-384 on the abovementioned date, no hearing
was set or conducted to resolve the pending motion. Therefore, on this
ground alone, the 29 July 1992 Resolution, even if it was meant to
resolve the appeal, is a patent nullity for having been issued in gross
violation of the requirement of notice and hearing mandated by Section
246 of the Omnibus Election Code, in relation to Section 18 of R.A. No.
7166 and Section 6, Rule 27 of the COMELEC Rules of Procedure, and for
having been resolved by the COMELEC en banc at the first instance. The
case should have been referred first to a division pursuant to Section 3,
Article IX-C of the 1987 constitution and Our ruling in Sarmiento
vs. Commission on Elections. Moreover, the COMELEC's claim that the
questioned resolution affirmed the correction made by the Board is
totally baseless. The PBC did not make any corrections. It merely
ordered the Municipal Boards of Canvassers of Tayug and San Manuel to
make such corrections. As earlier stated, however, the said MBCs did not
convene to make these corrections. It was the Chairmen alone who
signed the sheets of paper purporting to be corrections.
For being clearly inconsistent with the intention and official stand of
respondent COMELEC, private respondent COMELEC private respondent's
theory of termination under the second paragraph of Section 16 of R.A.
No. 7166, and the consequent affirmance of the ruling of the PBC
ordering the correction of the number of votes, must necessarily fail.
The foregoing considered, the proclamation of the private respondent
on, 13 August 1992 by the Provincial Board of Canvassers of Pangasinan
is null and void.
WHEREFORE, the instant petition is GRANTED. The challenged resolution
of the respondent Commission on Elections of 29 July 1992 and the
proclamation of the private respondent on 13 August 1992 as the second
Member of the Sangguniang Panlalawigan of the Province of Pangasinan,
representing its Sixth Legislative District ANNULLED and SET ASIDE and
respondent Commission on Elections is DIRECTED to resolve the pending
incidents conformably with the foregoing disquisitions and
pronouncements.
No costs.
SO ORDERED.
11

On February 23, 1993, private respondent Micu filed an Urgent Omnibus Motion before
the COMELEC praying that the latter hear and resolve the pending incidents referred
to by this Court. Private respondent was obviously referring to SPC No. 92-208 and
SPC No. 92-384, both cases left unresolved by the COMELEC.
Consequently, the First Division of the COMELEC set the cases for hearing on March 8,
1993. During the hearing, both Micu and Bince orally manifested the withdrawal of
their respective appeals. Also withdrawn were the petitions to disqualify Atty. Asperin
and to cite the Board for contempt. The parties agreed to file their respective
memoranda/position papers by March 15, 1993.
Petitioner Bince filed his Position Paper on March 12, 1993 arguing that the
withdrawal of SPC No. 92-208 affirmed the ruling of the PBC dated May 21, 1992 and
even if it were not withdrawn, Section 16 of R.A. 7166 would have worked to
terminate the appeal. Bince likewise asserts that his appeal in SPC No. 92-384 became
moot and academic in view of this Court's ruling nullifying the June 24, 1992 order of
the PBC granting the petitions for correction of the SOVs and COCs of Tayug and San
Manuel aside from being superseded by the PBC ruling proclaiming him on July 21,
1992.
On the other hand, private respondent Micu, in his Position Paper filed on March 15,
1993 postulated that the petitions filed on June 11, 1992 for the correction of the
SOVs and COCs of Tayug and San Manuel under Section 6 of Rule 27 of the Comelec
Rules of Procedure, as well as the ruling of the PBC of June 24, 1992 granting the
same were valid so that the withdrawal of Bince's appeal in SPC No. 92-384 firmly
affirmed the PBC ruling of June 24, 1992 allowing the corrections.
On July 15, 1993, the First Division of the COMELEC promulgated a Resolution, the
dispositive portion of which reads:
Viewed from the foregoing considerations, the Commission (First
Division) holds that the petitioner Alfonso C. Bince Jr. is entitled to sit
as member of the Sangguniang Panlalawigan, Sixth District of
Pangasinan.
ACCORDINGLY, the Commission (First Division) RESOLVED, as it hereby
RESOLVES, to AFFIRM the proclamation of petitioner Alfonso C. Bince, Jr.
by the Provincial Board of Canvassers of Pangasinan on 21 July 1992 as
the duly elected member of the Sangguniang Panlalawigan of the Sixth
District of the Province of Pangasinan.
12

On July 20, 1993, private respondent Micu filed a Motion for reconsideration of the
above-quoted resolution.
On September 9, 1993, the COMELEC en banc granted the private respondentls motion
for reconsideration in a resolution which dispositively reads as follows:
WHEREFORE, premises considered, the Motion for Reconsideration filed
by respondent Emiliano S. Micu is granted. The Resolution of the
Commission First Division is hereby SET ASIDE. The proclamation of
petitioner Alfonso Bince, Jr. on July 21, 1992 is hereby declared null and
void. Accordingly, the Provincial Board of Canvassers is hereby directed
to reconvene, with proper notices, and to order the Municipal Board of
Canvassers of San Manuel and Tayug to make the necessary corrections
in the SOVs and COCs in the said municipalities. Thereafter, the
Provincial Board of Canvassers is directed to include the results in the
said municipalities in its canvass.
The PBC is likewise ordered to proclaim the second elected member of
the Sangguniang Panlalawigan of the Sixth Legislative District of
Pangasinan.
SO ORDERED.
13

This is the resolution assailed in the instant petition for certiorari.
We do not find merit in this petition and accordingly rule against petitioner.
Respondent COMELEC did not act without jurisdiction or with grave abuse of
discretion in annulling the proclamation of petitioner Alfonso Bince, Jr. and in
directing the Provincial Board of Canvassers of Pangasinan to order the Municipal
Boards of Canvassers of Tayug and San Manuel to make the necessary corrections in
the SOVs and COCs in said municipalities and to proclaim the winner in the sixth
legislative district of Pangasinan.
At the outset, it is worthy to observe that no error was committed by respondent
COMELEC when it resolved the "pending incidents" of the instant case pursuant to the
decision of this Court in the aforesaid case of Bince, Jr. v.COMELEC on February 9,
1993 Petitioner's contention that his proclamation has long been affirmed and
confirmed by this Court in the aforesaid case is baseless. In Bince, we nullified the
proclamation of private respondent because the same was done without the requisite
due notice and hearing, thereby depriving the petitioner of his right to due process. In
so doing, however, we did not affirm nor confirm the proclamation of petitioner,
hence, our directive to respondent COMELEC to resolve the pending incidents of the
case so as to ascertain the true and lawful winner of the said elections. In effect,
petitioner's proclamation only enjoyed the presumption of regularity and validity of
an official act. It was not categorically declared valid.
Neither can the COMELEC be faulted for subsequently annulling the proclamation of
petitioner Bince on account of a mathematical error in addition committed by
respondent MBCs in the computation of the votes received by both petitioner and
private respondent.
The petitions to correct manifest errors were filed on time, that is, before the
petitioner's proclamation on July 21, 1992. The petition of the MBC of San Manuel was
filed on June 4, 1992 while that of still, the MBC of Tayug was filed on June 5, 1992.
Still, private respondent's petition was filed with the MBCs of Tayug and San Manuel
on June 10, 1992 and June 11, 1992, respectively, definitely well within the period
required by Section 6 (now Section 7), Rule 27 of the COMELEC Rules of Procedure.
Section 6 clearly provides that the petition for correction may be filed at any time
before proclamation of a winner, thus:
Sec. 6. Correction of errors in tabulation or tallying of results by the
board of canvassers. (a) Where it is clearly shown before
proclamation that manifest errors were committed in the tabulation or
tallying of election returns, or certificates of canvass, during the
canvassing as where (1) a copy of the election returns of one precinct or
two or more copies of a certificate of canvass was tabulated more than
once, (2) two copies of the election returns or certificate of canvass
were tabulated separately, (3) there had been a mistake in the adding or
copying of the figures into the certificate of canvass or into the
statement of votes, or (4) so-called election returns from non-existent
precincts were included in the canvass, 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.
(b) The order for correction must be in writing and must be
promulgated.
(c) Any candidate, political party, organization or coalition of political
parties aggrieved by said order may appeal therefrom to the Commission
within twenty-four (24) hours from the promulgation.
(d) Once an appeal is made, the board of canvassers shall not proclaim
the winning candidates, unless their votes are not affected by the
appeal.
(e) The appeal must implead as respondents all parties who may be
adversely affected thereby.
(f) Upon receipt of the appeal, the Clerk of Court concerned shall
forthwith issue summons, together with a copy of the appeal, to the
respondents.
(g) The Clerk of Court concerned shall immediately set the appeal for
hearing.
(h) The appeal shall be heard an decided by he Commission en
banc (Emphasis ours).
The rule is plain and simple. It needs no other interpretation contrary to
petitioner's protestation.
Assuming for the sake of argument that the petition was filed out of time, this
incident alone will not thwart the proper determination and resolution of the instant
case on substantial grounds. Adherence to a technicality that would put a stamp of
validity on a palpably void proclamation, with the inevitable result of frustrating the
people's will cannot be countenanced. In Benito v. COMELEC,
14
categorically declared
that:
. . . Adjudication of cases on substantive merits and not on technicalities
has been consistently observed by this Court. In the case of Juliano
vs. Court of Appeals (20 SCRA 808) cited inDuremdes vs. Commission on
Elections (178 SCRA 746), this Court had the occasion to declare that:
Well-settled is the doctrine that election contests involve
public interest, and technicalities and procedural barriers
should not be allowed to stand if they constitute an
obstacle to the determination of the true will of the
electorate in the choice of their elective officials. And also
settled is the rule that laws governing election contests
must be liberally construed to the end that the will of the
people in the choice of public officials may not be defeated
by mere technical objections (Gardiner v. Romulo, 26 Phil.
521; Galang v. Miranda, 35 Phil. 269; Jalandoni
v. Sarcon, G.R. No.
L-6496, January 27, 1962; Macasunding v. Macalanang, G.R.
No.
L-22779, March 31, 1965; Cauton v. Commission on
Elections, G.R. No. L-25467, April 27, 1967). In an election
case the court has an imperative duty to ascertain all
means within its command who is the real candidate
elected by the electorate (Ibasco v. Ilao, G.R. No. L-17512,
December 29, 1960). . . . (Juliano vs. Court of
Appeals, supra, pp. 818-819). (Emphasis ours)
In the later case of Rodriguez vs. Commission on Elections (119 SCRA
465), this doctrine was reiterated and the Court went on to state that:
Since the early case of Gardiner v. Romulo (26 Phil. 521),
this Court has made it clear that it frowns upon any
interpretation of the law or the rules that would hinder in
any way not only the free and intelligent casting of the
votes in an election but also the correct ascertainment of
the results, This bent or disposition continues to the
present. (Id., at p. 474).
The same principle still holds true today. Technicalities of the legal rules
enunciated in the election laws should not frustrate the determination
of the popular will.
Undoubtedly therefore, the only issue that remains unresolved is the allowance of the
correction of what are purely mathematical and/or mechanical errors in the addition
of the votes received by both candidates. It does not involve the opening of ballot
boxes; neither does it involve the examination and/or appreciation of ballots. The
correction sought by private respondent and respondent MBCs of Tayug and San
Manuel is correction of manifest mistakes in mathematical addition. Certainly, this
only calls for a mere clerical act of reflecting the true and correct votes received by
the candidates by the MBCs involved. In this case, the manifest errors sought to be
corrected involve the proper and diligent addition of the votes in the municipalities of
Tayug and San Manuel, Pangasinan.
In Tayug, the total votes received by petitioner Bince was erroneously recorded as
2,486 when it should only have been 2,415. Petitioner Bince, in effect, was credited
by 71 votes more.
In San Manuel, petitioner Bince received 2,179 votes but was credited with 6 votes
more, hence, the SOV reflected the total number of votes as 2,185. On the other
hand, the same SOV indicated that private respondent Micu garnered 2,892 votes but
he actually received only 2,888, hence was credited in excess of 4 votes.
Consequently, by margin of 72 votes, private respondent indisputably won the
challenged seat in theSangguniang Panlalawigan of the sixth district of Pangasinan.
Petitioner's proclamation and assumption into public office was therefore flawed from
the beginning, the same having been based on a faulty tabulation. Hence, respondent
COMELEC did not commit grave abuse of discretion in setting aside the illegal
proclamation.
As a parting note, we reiterate' our concern with respect to insignificant disputes
plaguing this Court. Trifles such as the one at issue should not, as much as possible,
reach this Court, clog its docket, demand precious judicial time and waste valuable
taxpayers' money, if they can be settled below without prejudice to any party or to
the ends of justice.
WHEREFORE, the instant petition is hereby DISMISSED with costs against petitioner.
SO ORDERED.