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 dispositive portion of the resolution penned by my worthy colleague, Mr. Justice Teehankee, in so far, as it orders the annulment and the setting aside of all proceedings and the decision of the Court of First Instance of Pampanga in its Election Cases Nos. 3653, 3654, 3655, 3656, 3657 and 3659 in connection with the correction of the election returns in six precincts of San Luis, Pampanga, as it orders the said court to hear anew the correction proceedings with due notice to the candidates affected and to have before it all copies of the election returns sought to be corrected, and in that connection as it orders the opening of the ballot boxes in the precincts concerned and conduct a summary and arithmetical recounting of the ballots pertaining to the candidates, and thereafter to issue the appropriate resolution on the basis of the evidence before it.

My concurrence, however, should be understood as simply agreeing in the resulting effect of the resolution, to remedy a situation brought about, by the unusual circumstances that attended the attempted correction of the election returns in six precincts of the municipality of San Luis, Pampanga, in connection with the national elections of November 11, 1969. These unusual circumstances are as follows.

Under the circumstances I have above related, I can not help but arrive at a conclusion, nay a conviction, that the petitions for the correction of those six election returns were merely a device resorted to by the supporters of candidate Tiglao in order that the lead of 247 votes of candidate Sanga could be overcome and that the correction proceedings are anomalous, irregular, and illegal. That is why I concur with the majority that the proceedings and the decision of the Court of First Instance of Pampanga in connection with the correction of those six election returns should be set aside and annulled. The returns as ordered corrected in the proceedings, to me, are worthless and must not be included in the canvass. However, because it is necessary that the winning candidate for Representative in the second district of Pampanga has to be proclaimed on the basis of election returns that reflect more or less the true result of the elections in those six precincts of San Luis, it becomes necessary that a recourse be had to the arithmetical count of the ballots inside the ballot boxes in those precincts, if it is shown that those ballot boxes and the contents therein have not been tampered with.

It is my view, however, that the expedient resorted to by this Court of opening the ballot boxes in order to ascertain the correct count of the votes cast in the six precincts in question is not contemplated in Section 154 of the Revised Election Code in the matter regarding correction of election returns. The procedure now adopted by this Court should only be considered as a special or extraordinary remedy in order to prevent an injustice, or to prevent a mockery of the elections held in the six precincts of San Luis, Pampanga, now in question. I believe that the procedure of ordering the opening the ballot box and count the votes in correction proceedings under Section 154 of the Revised Election Code should not be taken as a precedent in the construction or interpretation of said Section 154.

Alterations in the statement. — After the announcement of the result of the election in the polling place, the board of inspectors shall not make any alteration or amendment in any of the statements, unless it be so ordered by a competent court.

It is my considered view that what is contemplated in the above-quoted section of the Revised Election Code are honest mistakes committed by the members of the board of inspectors in the course of making the entries required by law in the election return, because as this Court has said "Mistakes of all sorts are too common in human experience to justify any one in denying the possibility of honest error . . .; and it was in contemplation of the possibility of such errors that the lawmakers provided for their correction with judicial approval."2 It can be gathered from a reading of the provision of Section 154 that before the announcement by the board of inspectors of the result of the election in the polling place the members of the board can make all the corrections in the election returns prepared by them that may be necessary in order to make the entries in the election returns reflect the true and correct result of the election. But it is also the duty of the members of the board of inspectors that upon the completion of the statements of the election returns, the chairman of the board shall orally and publicly announce the total number of votes polled in said election, in the said precinct by each and everyone of the candidates, naming them for each one of the offices,3 and that after the announcement of the result of the election in the polling place the board shall place one of the copies of the election return in the box for valid ballots, deliver one to the municipal treasurer, send another copy by registered mail to the provincial treasurer, and another, likewise by registered mail, to the Commission on Elections,4 and after the publication of the result of the election and before leaving the polling place it shall be the duty of the board of inspectors to issue a certificate of the number of votes received by a candidate, or by the opposing candidates, for a national or provincial office, for city councilor or for mayor or vice-mayor, to the watchers who may request them. All the members of the board shall sign the certificate.5 But after the announcement of the result of the election in the polling place it can happen that the members of the board of inspectors would discover that they committed a mistake — an honest one — such as an error in crediting the number of votes for a particular candidate, or a difference in the number of votes written in figures and the number written in words, and the like, and they consider it necessary to correct the honest mistakes. But because they have already announced the result, of the election in the polling place they cannot make this correction by themselves, even if they all agree. They can do this only by authority of the court. It has been held that "where the board of inspectors has announced the result of the election in a polling place its powers and duties end, and it may not withdraw the returns, add to, change or alter them and make new returns, unless it be so ordered by a competent court."6

I believe that the mistake or error contemplated in Section 154 must be an honest one, and it is a mistake that is common and known to all the members of the board of inspectors — that is why the petition to the court for that authority to make the correction must be by unanimous consent of all the members of the board of inspectors. It is also my view that the correction that all the members of the board of inspectors would ask the court to authorize must relate to errors, mistakes, omissions or oversight that all the members of the board of inspectors came to discover or to find out, and agreed upon by all of them, soon after the publication of the result of the election in the polling place or within a reasonable time thereafter and before the canvass of the votes by the board of canvassers. I would also add that once such petition for correction is filed with the competent court, the court should immediately conduct a hearing ex parte and satisfy himself from the evidence presented, which should consist of at least the testimonies of all the members of the board of inspectors, whether the correction prayed for should he authorized or not. Indeed, the Judge should have before him the election return that is sought to be corrected, as it would be irregular, not to say absurd, for a Judge to order the correction of so important a document as an election return, where the public has an interest, without even looking at the document. The proceeding for the correction of an election return forms part of the pre-proclamation proceedings which should be done with dispatch in order that the winning candidate in an election is proclaimed with the least delay. The court should act with dispatch, in the exercise of its sound discretion, whether to authorize the correction or not. Once the Judge has acted one way or the other, — either to authorize or not to authorize, the correction, the proceeding must end there, except perhaps if it can be shown that the Judge had acted in such a capricious or whimsical manner as to warrant an action by way of certiorari to correct his actuation.

I do not agree with the majority of this Court that a Judge in correction proceedings under Section 154 may go to the extent of having the ballot box opened and make an arithmetical count of the votes cast in favor of the candidates. I wish to repeat that the correction contemplated in Section 154 of the Revised Election Code refers to the correction of honest errors, mistakes or oversight on the part of all the members of the board of inspectors and agreed to by all of them. Certainly this section does not contemplate a correction of an election return under circumstances that indicate bad faith on the part of the parties interested in the correction. This bad .faith becomes specially obvious if the correction is sought long after the elections are over and a tentative canvass of the votes had already been made by the board of canvassers, as had happened in the case at bar. The court must consider the circumstances attending the filing of the petition for correction, and should exercise its discretion, whether to authorize the correction or not, promptly and firmly. As this Court has said in the case of Estrada v. Navarro7 "the proceeding for correction is a summary one, is not supposed to raise controversial issues, and does not call for a recount or revision of the ballots themselves, either of which contemplates a different remedy."

I am afraid that the majority opinion in the Resolution has so construed Section 154 of the Revised Election Code in a manner that amounts to judicial legislation, which, I believe, this Court should not do. I have misgivings that the application of Section 154 of the Revised Election Code as stated in the rationale of the resolution will open the door, in future elections, to practices that will delay rather than expedite the proclamation of the winning candidates in an election, if not altogether frustrate the election of candidates who really are the choice of the electorate.