G.R. Nos. L-31566 & L-31847 - Concurring Dissenting Opinion

G.R. No. L-31566, August 31, 1970,
♦ Decision, Teehankee, [J]
♦ Concurring & Dissenting Opinion, Dizon, [J]
♦ Concurring Opinion, Fernando, [J]
♦ Concurring & Dissenting Opinion, Zaldivar, [J]

ROGELIO O. TIGLAO, Petitioner, v. THE COMMISSION ON ELECTIONS, CORNELIO SANGA and THE BOARD OF CANVASSERS OF PAMPANGA, Respondents.

I concur in the result but reach by an approach in sympathy with, but not unqualifiedly subscribing to, the premises the majority find compelling. This is not to deny the merit inherent in the opinion of Justice Teehankee characterized by vigor and forth rightness and powerful in its logic. Precisely though, its high persuasive quality may obscure what for me would appear to be certain implications and nuances that for the present at least I cannot fully accept. Hence this concurring opinion.ℒαwρhi৷ There is, it would seem, some justification for a separate statement of one’s view considering the marked departure from previous rulings, overruling past decisions and locating the existence of a power hitherto not discerned.

1. It is expressly declared in the dispositive portion of our decision that the Court of First Instance of Pampanga is directed in the correction proceeding, in the election cases therein named,1 "to hear the same anew with due notice to the candidates affected to have before it the copies of the election returns sought to be corrected; being satisfied prima facie of the errors alleged to have been committed by the boards of inspectors concerned and upon its preliminary finding that the identity and integrity of the ballot boxes have been duly preserved, order the opening thereof and after likewise satisfying itself that the integrity of the ballots therein has been also duly preserved, conduct a summary and arithmetical recount of the ballots themselves; and thereafter to render anew the appropriate resolution on the basis of the evidence before it." The result thus reached would impart to Section 154 of the Revised Election Code the interpretation that the candidates affected be notified of the hearing thereon in accordance with the cardinal requirement of due process and that if it be ascertained that the integrity of the ballot boxes and their contents has been duly preserved, to open the same for the purpose of determining the votes actually received by such candidates as the basis of whatever appropriate resolutions could thereafter be handed down. As noted at the outset, I am in full agreement.

There can be no exception to the correctness of this categorical pronouncement in the opinion of Justice Teehankee: "The demands of procedural due process that a party affected must be given notice and an opportunity to be heard must be fulfilled together with the law’s policy for the prompt proclamation of the true winner in the elections." It may not be amiss to refer to what was clearly set forth in a dissent by Justice Dizon on Cuenco v. Laya.2 It was his view that respondent Judge "committed a grave abuse of discretion in considering [the urgent petition] ex parte and in issuing the order complained of."3 As he pointed out:" [I] agree with the majority opinion that ‘broad perspectives of public policy impose upon courts the imperative duty to ascertain who is the real candidate elected, in as expeditious a manner as possible, without being fettered by technicalities and procedural barriers,’ but I also submit that equally broad and imperative perspectives of public policy demand that the courts should do so with fairness and understanding, and without taking any precipitous action — violative of due process — that might give rise to suspicions of bias."4 The construction that is now fastened on this section of the Election Code has decidedly in its favor its conformity with a constitutional mandate. That is as it ought to be. Hereafter, no doubt should remain as to the necessity of giving the candidates affected an opportunity to be heard in every proceeding for correction.

2. Equally so, the disposition of this litigation, considering the facts brought to our attention, would not be in accordance with justice according to law unless a recount is had, assuming, of course, the integrity of the ballot boxes and their contents has been preserved. Hence, again, the writer of this opinion joins the rest of his colleagues. He is not fully persuaded, however, that there .s a need to provide that hereafter "in all such correction proceedings, the court of first instance upon being satisfied at the hearing that a prima facie case has been made out, must furthermore, — unless the correction sought is indubitable or unopposed and may therefore be summarily ordered — in all cases where it finds that the integrity of the ballot box and its contents has been duly preserved, go to the real evidence, open the ballot box and conduct a summary recount of the ballots themselves as in judicial recount proceedings under section 16 of the code." While, for me, the necessity for such a procedure is apparent in this case, I am not prepared as yet to go along with the view that such a rigid formulation should be invariably adhered to in every such litigation of this character. I would leave the matter open to the discretion of the lower court. With this view I take of the case, there would seem to be no need as yet for the appropriate invocation of the exercise of our rule-making power. It is in that sense that my acceptance of the opinion of Justice Teehankee is less than complete.

3. The opinion of Justice Teehankee sets forth in the most emphatic language what is referred to as "compelling reasons and considerations" for the conclusion reached in this case. The way they are marshalled and assembled would appear to render immune from any objection our decision in this case. If I find myself unable to give my unconditional assent, it is partly due to what I feel to be the assumption that both the correction and recount proceedings need not be distinguished. As set forth, the opinion states that there "really is no substantial difference" between them. Insofar as the objective be to determine the votes actually received, then there is no basis for disagreement. To the extent, however, that the differing theories constituting the justification for the various steps set forth in detail in the Election Code are inadvertently overlooked in the stress laid on the ultimate purpose of a recount, namely, to ascertain the true will of the voters, then it would appear to me that less than sweeping language is called for.

It may be likewise that I read into Justice Teehankee’s opinion implications that it does not really contain, but in the weighing of the two objectives of public interest, insufficient weight, it seems to me, is placed on the need for prompt expedition of the proceedings prior to proclamation. This is not to say that "the thwarting of the unrelenting efforts of the scrupulous to frustrate the popular choice of the electorate" is not a basic objective. That affords warrant for the opening of the ballot boxes in proceedings of this character to determine what the true results are. That is to pay tribute anew to the constitutional objective of insuring free, orderly, and honest elections.5

What makes me hesitant, however, to go along with the sweeping scope of the opinion is that while I am persuaded that this particular case calls for a decision as rendered by us, I am far from convinced that thereafter the procedure indicated by us in this decision is to be inflexibly followed. The situations that may arise in the future are many and varied. A principle valid for today may not always retain that attribute. Moreover, for me at least, there is merit in the view, especially in election law cases, that no overriding doctrine impressed with an inflexible character is to be categorically announced, the process of inclusion or exclusion being the more appropriate considering the multifarious and diverse instances of abuses in the electoral process that may subsequently present themselves. I am not prepared to state then, except where, as in the case of the notice, the constitutional command of due process is paid deference, that the action to be taken by the lower court in the exercise of its power under Section 154 is to be predetermined in advance to cover each and every instance where such power is invoked.

4. Nor would there be in any opinion any valid objection that could be raised if our decision, considering the literal language of Section 154 of the Election Code, tends to be rather expansive in character. That is implicit in the process of construction. To paraphrase those noted jurists, Holmes and Cardozo, judge-made law is one of the existing realities of life. A court though is not free to roam at will. The limits of its competence are narrower. It may legislate only between gaps. It fills the open spaces of the law. But courts must and do legislate, only they do so interstitially; they are confined from molar to molecular motions. Nonetheless within such limits and within the confines of these open spaces, choice moves with a freedom that stamps its action as creative. The law which is the resulting product is not found but made. Clear is it thus that the power to declare the law carries with it the authority, and within limits the duty, to make law where none exists.6