XII.

PRE-PROCLAMATION CASES

1. Definition; Coverage

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 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. (Chu vs.
COMELEC, 319 SCRA 482 and Sinsuat vs. COMELEC, 492 SCRA 391)

In pre-proclamation controversy, the board of canvassers and the COMELEC are not to look
beyond or behind election returns which are on their face regular and authentic returns (Chu
vs. COMELEC, 319 SCRA 482)

A pre-proclamation controversy is limited to an examination of the election returns on their

face the COMELEC as a general rule need not go beyond the face of the returns and
investigate alleged election irregularities. (Sebastian vs. COMELEC, 327 SCRA 406 and Belac
vs. COMELEC, 365 SCRA 394)

To require the COMELEC to examine the circumstances surrounding the preparation of the
returns would run counter to the rule that a pre-proclamation controversy should be summarily
decidedWhere the resolution of the issues raised would require the COMELEC to pierce the
veil of election returns that appear prima facie regular, the remedy is a regular election
protest

The office of a pre-proclamation controversy is limited to incomplete, falsified or materially

defective returns which appear as such on the face.(Sebastian vs. COMELEC, 327 SCRA 406)

2. Jurisdiction

1. Questions involving the legality of the composition or proceeding of the board of

canvassers, except Congress, may be raised initially in the board of canvassers or the
Commission on Elections. (Sec. 15 and 17, RA 7166)

2. Questions involving the election returns and certificate of canvass should be brought in
the first instance before the board of canvassers only. (Sec. 17, RA 7166)
3. When the issue involves the correction of manifest errors in the tabulation or tallying of the
results during the canvassing, the same may be filed directly with the Commission en
banc. [Sec. 5 (2), COMELEC Rules of Procedure]
A manifest error is one that is visible to the eye or obvious to the understanding; that which is
open, palpable, incontrovertible, needing no evidence to make it more clear. (OHara vs.
COMELEC, GR Nos. 148941-41, March 12, 2002)

C. Scope of Pre-proclamation controversy

1. Provincial, city and municipal officials

1. The composition of the proceeding of the board of canvassers is illegal;
2. The 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;
3. The returns were prepared under duress or are obviously manufactured or not
authentic;
d. Substitute or fraudulent returns were canvassed, the result of which materially affect the
standing of the aggrieved candidate. (Sec. 243, BP 881; Sec. 16 RA 7166)

2. President, Vice President, Senators and Congressmen

1. No pre-proclamation case is allowed regarding the preparation, transmission, receipt,
custody and appreciation of the election return or certificate of canvass for President, Vice
President, Senators and Members of the House of Representatives. (Chaves vs. COMELEC, 211
SCRA 315; Ong vs. COMELEC, 216 SCRA 826, Pangilinan vs. COMELEC, 228 SCRA36)
b. While the first sentence of Sec. 15 of RA 7166 prohibits candidates in the presidential, vice-
presidential, senatorial and congressional elections from filing pre-proclamation case, the
second sentence of Sec. 15 allows only the filing of petitions for correction of manifest errors in
the certificate of canvass or election returns even in elections for president, vice-president,
senators and members of the House of Representatives for the simple reason that the
correction of manifest error will not prolong the process of canvassing nor delay the
proclamation of the winner in the election.(Sandoval vs. COMELEC, 323 SCRA 403) Under
Section 38 of Ra 9369 (amending Section 15 of RA 7166) the prohibition 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 return
before it.

D. Proper Issues in a Pre-Proclamation Controversy

The enumeration of issues that may be raised in pre-proclamation controversies, as provided

for in Section 243 of the OEC is restrictive and exclusive. (Dagloc vs. COMELEC, 417 SCRA 574)

The following shall be proper issues that may be raised in a pre-proclamation controversy:
1) Illegal composition or proceedings of the board of canvassers which 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 seat as such is objected to if it comes after the convening of the
board, or immediately at the point where the proceedings are or begin to be illegal. (Villamor
vs. COMELEC, 496 SCRA 334)
2) 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 the OEC
3) The election returns were prepared under duress, threats, coercion, or intimidation, or they
are obviously manufactured or not authentic. Where the threats of the followers of a candidate
did not affect the genuineness of the election return, it should not be excluded. (Salvacion vs.
COMELEC, 170 SCRA 513)and
4) When substitute and fraudulent returns in controverted polling places were canvassed, the
results of which materially affected the standing of the aggrieved candidate or candidates.
Hence, the COMELEC finding on election returns which it found to be a sham, anchored on the
manner of their preparation, is a pre-proclamation issue. (Dagloc vs. COMELEC, 417 SCRA
574)

Errors in the Certificate of Canvass

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. A manifest
clerical error is one that is visible to the eye or obvious to the understanding, and is apparent
from the papers to the eye of the appraiser and collector, and does not include an error which
may, by evidence dehors the record to be shown to have been committed. (Trinidad vs.
COMELEC, 320 SCRA 836)

1. The canvassing body may motu propio or upon petition of an interested party correct
manifest errors in the certificate of canvass or election return. (Sec.15, RA 7166)
i. A copy of an election return or certificate of canvass was tabulated more than once.
ii. Two or more copies of the same election return or certificate of canvass were tabulated
separately.
iii. There was a mistake is copying the figures into the statement of votes or certificate of
canvass. Errors in addition in the certificate of canvass may be corrected. ( Lucero vs.
COMELEC, 234 SCRA 280)
iv. Returns from non-existent precincts were included in the canvass. [sec. 5 (a) (2), Rule 27 of
COMELEC Rules of Procedure; Ong vs. COMELEC, 221 SCRA 75)

2. The statement of votes cannot be corrected on the basis of a certification given to a

watcher, since election returns are what are supposed to be the basis of the canvass. (Ramirez
vs. COMELEC, 270 SCRA 390)

3. Doubt arises as to the authenticity of the returns and the manner of their preparation
specially in this case where a party watcher was allowed to take part in the preparation of the
election return. And since the return was incomplete for it lacked the data as to provincial and
congressional candidates, the applicable provision would be Section 234 of the Omnibus
Election Code which deals with material defects in election returns. (Lee vs. COMELEC, 405
SCRA 363)

Statistical Improbabilities

An election return which is statistically improbable is obviously fabricated and should not be
counted.
i. Where the votes cast in 50 precincts for the candidates for senators of one party equaled the
number of registered voters, all the candidates for senators of that party received the same
number of votes, and all the candidates for senators of the opposing party got no votes, the
 election returns are statistically improbable and are obviously fabricated. (Lagumbay vs.
Climaco, 16 SCRA 175)
ii. Where only one candidate of a party got all the votes in some precincts and his opponent
got zero, the other candidates for the other party for other positions received votes, the
number of votes cast were less than the number of registered voters, the election returns are
not statistically improbable. (Sangki vs. COMELEC, 21 SCRA 1391)
iii. The mere fact that a candidate receive overwhelming majorities over another candidate in
numerous precincts does not make the election return statistically improbable. (Ilarde vs.
COMELEC, 31 SCRA 71)
iv. The mere fact that the percentage of turnout of voters was high and that a candidate
received high percentage of the votes does not make the election returns statistically
improbable. (Doruelo vs. COMELEC, 133 SCRA 376)
v. The bare fact that candidates for public office had received zero votes is not enough to
make the returns statistically improbable. (Ocampo vs. COMELEC, 325 SCRA 636)
vi. Standing alone and without more, the bare fact that a candidate for public office received
zero votes in one or two precincts cannot adequately support a finding that the subject
election returns are statistically improbable the doctrine of statistical improbability must be
viewed restrictively, the utmost care being taken lest in penalizing the fraudulent and corrupt
practices, innocent voters become disenfranchised. The doctrine of statistical improbability
involves a question of fact and more prudential approach prohibits its determination ex
parte. (Velayo vs. COMELEC, 327 SCRA 713)

Issues NOT resolvable in Pre-proclamation controversy

1. Issues involving the casting or the counting of the ballots are not proper in pre-
proclamation cases.
1. The use of illegal election propaganda, vote-buying and terrorism of the voters are not
proper issues in a pre-proclamation case. (Villegas vs. COMELEC, 99 SCRA 582)

2. Questions on the appreciation of the ballots cannot be raised in a pre-proclamation

case. (Alfonso vs. COMELEC, 232 SCRA777 and Sinsuat vs. COMELEC, 492 SCRA 391) Thus, the
claim that a candidate was not credited with votes cast for him because his name was similar
to that of another disqualified candidate cannot be raised in a pre-proclamation case. (Chavez
vs. COMELEC, 211 SCRA 315) Likewise, the claim that some ballots were spurious, marked or
invalid cannot be raised in a pre-proclamation case. (Patoray vs. COMELEC, 274 SCRA 470)
iii. Terrorism of voters, voting by flying voters, deprivation of the right to vote of registered
voters and vote buying cannot be raised in a pre-proclamation case. (Allarde vs. COMELEC,
159 SCRA 623)

3. Vote buying and secrecy in the preparation of ballots are not proper grounds for a pre-
proclamation case. (Salazar vs. COMELEC, 184 SCRA 433)
4. The claim that the voters were allowed to vote without verifying their identities, that there
were discrepancies between the signatures in the voters affidavits and the voting record,
and third persons falsely voted for voters who did not vote are not proper issues in a pre-
proclamation case.(Dipatuan vs. COMELEC, 185 SCRA 86)
5. Technical examination of the signatures and thumbprints of the voters to prove substitute
voting is not allowed in a pre-proclamation case. (Balindong vs. COMELEC, 260 SCRA 294)
6. The padding of the list of voters cannot be raised in a pre-proclamation case, since it does
not involve the election return. (Ututalum vs. COMELEC, 189 SCRA 335)
7. To look beyond or behind election returns is not a proper issue in pre-proclamation
controversy. (Ocampo vs. COMELEC, 325 SCRA 636)
8. The fact that the voting was sham or minimal is not a ground for filing a pre-proclamation
case, since this is properly cognizable in an election protest.(Salih vs. COMELEC, 279 SCRA
19)

10. A pre-proclamation controversy is not the same as an action for annulment of election
results, or failure of elections. (Ampatuan vs. COMELEC, 375 SCRA 503)

xi. The fact that the counting of the votes was not completed because of the explosion of a
grenade and that no election was held cannot be raised in a pre-proclamation case, as these
are irregularities that do not appear on the face of the election returns. (Matalam vs.
COMELEC, 271 SCRA 733)

2. Administrative lapses which do not affect the authenticity of an election return cannot serve
as basis for annulling the election return.
i. The failure to close the entries in the election returns with the signature of the board of
election inspectors, lack of seals, absence of time and date of receipt of election return by the
 board of canvassers, lack of signature of the watchers of the petitioner, and the lack of
authority of the person who received the election returns do not affect the authenticity of the
returns. (Baterina vs. COMELEC, 205 SCRA 1)
ii. The absence of the signature of the chairman of the BEI on the voters affidavits, list of
voters and voting records; absence or excess of detachable coupons, discrepancies between
the number of detachable coupons and the number of ballots, missing voters lists are mere
administrative omissions and cannot be used as basis to annul an election return. (Arroyo vs.
HRET, 246 SCRA 384)

Summary disposition of pre-proclamation controversy- Sec. 18, RA 7166

A All pre-proclamation controversies shall be heard summarily after due notice first, by the
board of canvassers, and then, by the COMELEC. (Chu vs. COMELEC, 319 SCRA 482) All pre
and post proclamation proceedings should be resolved summarily but not ex parte. Summary
simply means with dispatch, with the least possible delay, signifying that the power may be
exercised without a trial in the ordinary manner prescribed by law for regular judicial
proceedings. (Velayo vs. COMELEC, 327 SCRA 713)

The legislative intent behind the summary disposition of pre-proclamation controversies is to

give life to the policy that the canvass and proclamation be delayed as little as possible for it is
the public interest that the position for which the election was held should be filled promptly,
even though the proclamation of the winning candidate would be provisional in nature, in that
the same may still be subject to the results of the election protests that may be subsequently
filed. (Chu vs. COMELEC, 319 SCRA 482)

B. Among others, pre-proclamation controversies on election returns or certificates of canvass

must be disposed of summarily by the COMELEC on the basis of the records and evidence
adduced in the Board of Canvassers. However, in a separate concurring opinion, Justice
Mendoza observed that Section 246 of the OEC was amended by Section 18 of RA 7166, the
effects of which are:
1. In the disposition of pre-proclamation controversies involving election returns and
certificates of canvass, the previous requirement of notice and hearing has been eliminated;
2. The COMELEC is directed to decide such pre-proclamation controversies solely on the
basis of the records and evidence elevated to it by boards of canvassers;
3. The COMELEC is directed to decide the case within seven (7) days from receipt thereof;
and
4) The COMELEC decision becomes executory upon the lapse of seven (7) days from receipt by
the losing party of the decision. (Velayo vs. COMELEC, 327 SCRA 713)
 A. Procedure in Contested Composition or Proceeding of the Board of Canvassers
The illegality of the composition of the board of canvassers cannot be questioned after the
proclamation of the winner, since it must be raised immediately. (Laodenio vs. COMELEC, 276
SCRA 705)

The ruling of the board of canvassers on question affecting its composition or proceeding may
be appealed to the COMELEC in 3 days. (Sec. 19 RA 7166)

B. Procedure in Case of Contested Returns

1. Objections to an election return shall be submitted orally to the chairman of the board of
canvassers at the time the return is presented for inclusion in the canvass and shall be entered in
the form for written objection. [Sec. 20 (a) and (c), RA 7166]
1. An objection made after the canvass is late. (Guiao vs. COMELEC, 137 SCRA 356; Navarro
vs. COMELEC, 228 SCRA 596)
2. A petition for correction of the statement of votes may be filed after the proclamation of
the winner, although no objection was made during the canvass, as error was discovered only
after the petitioner got a copy of the statement of votes. (Duremdes vs. COMELEC, 178 SCRA
746). It must be filed not later than 5 days after the proclamation. [Sec. 5 (b), Rule 27 of
COMELEC Rules of Procedure]

However, the five-day deadline is not applicable to a petition for the annulment of
proclamation of a candidate when it was his opponent who obtained the majority for what was
corrected was not the entries but the computation of the votes. (Mentang vs. COMELEC, 229
SCRA 666)

Under the COMELEC Rules of Procedure, a petition for correction of the certificate of canvass
may be filed even before the proclamation of the winner. (Bince vs. COMELEC, 242 SCRA 273)
A petition for correction of manifest errors in the statement of votes can be decided of the
COMELEC en banc at the first instance, since it does not involve an election protest or a pre-
proclamation case. (Ramirez vs. COMELEC, 270 SCRA 590)

The COMELEC has the power to order the correction of the statement of votes to make it
conform to the election returns. Corrections should be made by inserting the correction in the
Statement
of Votes or be preparing a new Statement of Votes incorporating the corrections. (Castromayor
vs. COMELEC, 250 SCRA 298)

2. The canvass of any contested return shall be deferred and the board of canvasser shall
to proceed canvass the uncontested return. [Sec. 20(b), RA 7166]

3. Within 24 hours, the objecting party shall submit evidence in support of the objections.

4. Within 24 hours after presentation of the objection, a party may file a written opposition
and attach the supporting evidence. [Sec. 20, c, RA 7166]

5. The board of canvassers shall summarily rule on the contested returns. [Sec. 20(d), RA
7166]

6. A party who intends to appeal should immediately inform the board of canvassers. [Sec.
20(e), RA 7166] Within 24 hours he must file a written and verified notice of appeal with the
board of canvassers and take his appeal to the COMELEC within 5 days. [Sec. 20(f), RA 7166]

1. Appellate Jurisdiction
1. The Regional Trial Court has no jurisdiction to review the decision of the municipal board
of canvassers to correct a certificate of canvass. (Cabanero vs. CA, 232 SCRA)
2. The Regional Trial Court has no jurisdiction to compel the municipal board of canvassers,
which suspended the proclamation because of a possible discrepancy in the election return, to
make a proclamation. (In re COMELEC Resolution No. 2521, 234 SCRA 1)

2. Period of Appeal
1. Since the proclamation of a candidate who finished second made after the candidate
who got the highest number of votes was killed is patently void, a late appeal should be
allowed. (Benito vs. COMELEC, 235 SCRA 436)
2. The COMELEC cannot by regulation shorten the period to question its decision before
the Supreme Court for under the Constitution the period of 30 days can be shortened by law
only. (Sardea vs. COMELEC, 225 SCRA 374)
7. The COMELEC shall decide the appeal within 7 days from receipt of the records, and the
decision shall be executory after 7 days from receipt by the losing party. (Sec. 18 and 20 (f),
RA 7166)

Termination of Pre-Proclamation Case

1. All pre-proclamation cases pending before the COMELEC shall be terminated at the
beginning of the term of the office (noon of June 30) involved, and the rulings of the board of
canvassers shall be deemed affirmed, without prejudice to the filing of an election protest by
the aggrieved party. (Penaflorida vs. COMELEC, 282 SCRA 241 and Barroso vs. Ampig, 328
SCRA 530)

2. Once a proclamation has been made, the pre-proclamation case is no longer viable and
should be dismissed. (Sardea vs. COMELEC, 255 SCRA 374).However, this rule presupposes
the proclamation is valid. It does not apply if the proclamation is void, because it was based on
incomplete returns.(Matalam vs. COMELEC 271 SCRA 733)
The same holds true if the returns were manufactured. (Agbayani vs. COMELEC, 186 SCRA
464). The same holds true where the computation of votes was erroneous. (Mentang vs.
COMELEC, 229 SCRA 669)

3. The pre-proclamation case should no longer be decided if exclusion of the questioned

election return will not change the result of the election. (Matalam vs. COMELEC, 271 SCRA
733)

Effect of Filing an election protest, quo warranto

1. 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
2. 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. (Maruhom vs. COMELEC, 331 SCRA 473) It thus deprived of
the authority to inquire into and pass upon the title of the protestee or the validity of his
proclamation. The reasons 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 proceedings. This procedure will prevent the
confusion and conflict of authority. 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. (Villamor vs. COMELEC, 496 SCRA 334)
3. The filing of an election protest results in abandonment of a pre-proclamation case even
if the protest alleged it was filed as a precautionary measure, if he did not explain
why. (Laodenio vs. COMELEC, 276 SCRA 405)
4. The rule that the filing of a protest implies abandonment of the pre-proclamation case does
not apply if:
i. the protest was filed as a precautionary measure. (Mitmug vs. COMELEC, 230 SCRA 54)
ii. the board of canvassers was improperly constituted, as when the Municipal Treasurer took
over the canvassing without having been designated.(Samad vs. COMELEC, 224 SCRA 631)

5. As held in Matalam vs. COMELEC, 271 SCRA 733, where it becomes apparent that a pre-
proclamation controversy is inadequate, they should immediately choose another timely
remedy like a petition to annul election results or to declare a failure of election or even
election protest, so that the election irregularities may be fully ventilated and properly
adjudicated by the competent tribunal.

6. There is no law or rule prohibiting the simultaneous prosecution or adjudication of pre-

proclamation controversies and elections protests. Allowing the simultaneous prosecution
scenario may be explained by the fact that pre-proclamation controversies and election
protest differ in terms of the issues involved and the evidence admissible in each case, and the
objectives each seeks to achieve. Moreover, the Court, under
certain circumstances, even encourages the reinforcement of a pre-proclamation suit with
election protest. Since they have different causes of action, they can proceed
independently. (Tan vs. COMELEC, 507 SCRA 352)

Continuance of the Case

If the petition appears meritorious on the basis of the evidence presented so far, the COMELEC
or the Supreme Court may order the case to continue. (Sec. 16, RA 7166)

Proclamation
1. During the pendency of a pre-proclamation contest the Board of Canvassers shall not make
any proclamation without any authorization from the COMELEC.(Jamil vs. COMELEC, 283 SCRA
349 and Munoz vs. COMELEC, 495 SCRA 407)
2. Proclamation may be made if the contested returns will not adversely affect the results of
the elections. [Sec. 20 (i), RA 7166]
3. The COMELEC may order the proclamation of other winning candidates whose election will
not be affected by the pre-proclamation case. (Sec. 21, RA 7166)

4. A candidate for mayor who finished second cannot be proclaimed simply because the
candidate who received the highest number of votes died, since he was not the choice of the
people. (Benito vs. COMELEC, 235 SCRA 436)

5. The wreath of victory cannot be transferred from the disqualified winner to the repudiated
loser because the law then as now only authorizes a declaration of election in favor of the
person who has obtained a plurality of votes to be declared elected. (Sunga vs. COMELEC, 288
SCRA 76)