EN BANC
G.R. No. L-31501 June 30, 1970
DATU BLAH SINSUAT, petitioner,
vs.
SALIPADA K. PENDATUN, COMMISSION ON ELECTIONS, and THE PROVINCIAL BOARD OF CANVASSERS OF COTABATO, respondents.
Jose W. Diokno for petitioner.
Salonga, Ordoñez, Yap, Sicat and Associates for respondent Pendatun.
Separate Opinions
BARREDO, J., concurring and dissenting:
The lengthy, intensely searching and painstaking analysis made by Mr. Justice Zaldivar of the eight issues involved in this case commends itself for serious and mature consideration. It is at once a tribute to the sagacity and industry of our esteemed colleague and constitutes another incontestable evidence not only of his passion for seeking the truth but also of his firm determination not to render judgment on any matter unless he is certain of the justice of his decision. He has thoroughly scrutinized all pertinent aspects of the case before Us and has seen to it that all his conclusions are buttressed by all possible arguments that can support them. Accordingly, I find no difficulty in agreeing with the concurring in his resolution of the following issues:
1. That the Lagumbay ruling applies to a single office. Indeed, there is no plausible reason why the doctrine of statistical improbability enunciated in the Lagumbay case, if applicable to a given return, as hereinunder explained, should not be applied to a single office involved in the election referred to in the said return. To the very convincing arguments already advanced by Mr. Justice Zaldivar, I can only add one observation to answer contention of distinguished counsel that even if a return may be false or manufactured as to the senatorial candidates, it does not necessarily follow that it is false also as to the candidates for a single office, in this case, for congressman.
The true concept of a manufactured return is that it is prepared without regard to the contents of the ballots casts in the precinct. More likely than not, the votes are not .
The true concept of a manufactured return is that it is prepared without regard to the contents of the ballots cast in the precinct. More likely than not, the votes are not counted at all and the return is filled up without any other basis than what the ones preparing it wish to appear therein, or even if a count has been made, the same is completely disregarded, so that if in fact, the number of votes entered therein purportedly for any candidate happens to be the same as those actually cast for him, such would be a mere coincidence and not a deliberate recording of such votes. In these circumstances, it is easy to see that there could be no basis for giving any of the votes entered in such return any prima facie value separately from the rest thereof. Besides, if the intent and purpose to falsify are there, it is inconceivable that any degree of loyalty to truth can still be left lingering in the minds of the malefactors, particularly when, as in this case, the lone candidate involved belongs to the same party as the senatorial candidates favored by the falsification. It must be emphasized that the only reason why an election return is accorded prima facie status as evidence of the result of the count of the votes in a precinct is because the same is prepared by election inspectors who are specifically entrusted by the election law with the official duty of counting and recording or entering the number of votes received by all the candidates, hence it is to be presumed prima facie that such official duty has been normally complied with. Therefore, once it is evident that in violation of such official duty, the inspectors have prepared a return that is purely a product of their fancy and not factual, the reason for giving such return prima facie value ceases as to the whole of it and as to all the votes entered therein.
2. That the "excess" of votes must be great to warrant setting aside of return. I also agree that the number of alleged "excess" votes appearing in the returns for Precincts 10, 16, 27, 31 and 33 of Pikit (The return for Precinct 15 is treated elsewhere in this opinion) are not as great as to warrant the application thereto of the Mitchell precedent. I do note that of these five precincts, it is only in Precinct 16 that respondent Pendatun appears credited with any vote in excess of the number of voters who voted, and, at that, by only one (1) vote. In Precincts 10 and 33, the excess refers to the total of the votes for the two vice-presidential candidates, 3 votes and 1 vote, respectively. In Precinct 37, the excess 28 votes are with reference to the total of the votes for four candidates for member of the provincial board, whereas in Precinct 31, there are only 19 votes appearing to be in excess of the total votes for the senatorial candidates of the two major parties, with Palmares, Sumulong and Tamano getting 24, 4 and 4 excess votes each, respectively. Definitely, under these circumstances, it cannot be said that the results shown by said returns are palpably false, particularly as to the votes of respondent Pendatun. These are instances which can readily be explained as within the area of errors of computation or recording that not very seldom occur due to the excitement and haste that quite often attend the preparation and signing of the returns. They may be grounds for correction but, surely, not of complete setting aside of the returns. This is but a reiteration of the rulings of this Court in Alonto v. Comelec, 22 SCRA 878 and Ilarde v. Comelec, G.R. No. L-31446, January 23, 1970.
3. That the matters referring to certain precincts should be subject of further action by the Comelec. I also cannot find any reason to disagree with the way Mr. Justice Zaldivar has disposed of the matters relating to Precincts 54 of M'lang, 4-A of Maganoy and 31 of Dinaig. In order to avoid confusion, however, it is perhaps better to clarify that as regards Precinct 54 of M'lang, the decision of this Court is not only to affirm the portions of Comelec Case Resolution No. RR-692 referring to said Precinct, but also to hold that the Provincial Treasurer's copy of the election return for said precinct, photostatic copy of which has been furnished this Court, be used in the canvass herein involved. The dispositive part of the decision should be so understood.
4. As to the use of the Comelec copy of the return for Precinct 15 of Pikit. I am also in agreement with the majority's resolution of the issue regarding the return for Precinct 15 of Pikit. While there may really be some controversy as to what actually was the exact condition of the Comelec copy of the return for said precinct on December 24, 1969 when it was first examined by the Chairman and members of the Commission as well as the parties or their counsel, there can be no doubt as to what appears on the face of said copy as it is now, which in my view is the fact that is decisive. Indeed, it hardly needs any evidence aliunde for it to be demonstrated and thereby be determined by this Court.
It is contended by respondent that from the start, the theory of the petitioner has always been that said Comelec copy is clean and untampered and, as a matter of fact, it is of record that such was the agreement and understanding of all the parties and the Comelec commissioners as of said date December 24, 1969. As if to throw the corpse to petitioner's side of the fence, respondent argues now that it was only after petitioner had been permitted to photograph some returns, including the one in question, and after having taken such photographs, which must have been done after December 24th, that petitioner raised for the first time the present issue of alleged tampering of said copy. In other words, respondent is insinuating, if not actually charging, that, if it is true that said return appears now to have evidence of tampering, petitioner cannot be entirely free from suspicion of having had something to do with such tampering. At any rate, the main point of respondent is that inasmuch as the Comelec has found as a fact that the Comelec copy in question was clean and untampered on December 24, 1969 and petitioners had always been insisting that said copy should be the one used, there is no alternative but to use said copy because petitioner is in estoppel to pretend otherwise.
To be sure, I have no quarrel with the conclusion that the Comelec copy should be used in the canvass. What needs to be clarified is, which of the two numbers of votes for respondent both appearing legible in said copy, 250 and 700, should be considered as the legitimate one for the respondent, it being unquestionable that although as found by the Comelec, the said copy was clean and untampered on December 24th, as it now appears, there are erasures, alterations and superimpositions therein, and as to which of these figures superimpose the other, the only data from which any conclusion can be drawn are those contained in the report of the Comelec committee created for the express purpose of examining the same, which report is textually as follows:
For Prec. No. 15, Pikit, Cotabato, copy for the Comelec, bearing Serial No. 47177, the following observations are made:
1. On Data on Voters —
With respect to the entry on the number of voters registered in precinct, it is noted that there are erasures made in the original entry which with a magnifying glass could be read as 692. The word in the original entry "six hundred ninety-two" six and ninety-two have been erased. Over the word "six" is written the word "seven". In the total number in figures the original entry 692 could also be discerned and over which is superimposed the figure 700. In the entry on the number of voters who actually voted the original entry has been erased but which could still be read as "two hundred fifty". It is observed that in the original entry in words, the words "two" and "fifty" have been erased and over the word "two" is superimposed the word "seven". In the entry on total number in figures there appears to have been a superimposition over the original entry which could not be appreciated with certainty. The superimposed figures written is 700.
2. On Data on Ballots —
In the entry on data on ballots, in the space ballots found in the compartment for valid ballots the original entry appears to have been erased and over which was written the words "four hundred fifty". It is also observed that over the superimposed entry is written the words "two hundred fifty plus". In the entry on total number in figures the original entry which could be read as 250 has been erased and over which is written the figure 700. In the entry for valid ballots withdrawn from the compartment for spoiled ballots, for having been mistakenly placed therein it appears in the entry on total number in words the word "non" has been written. However, with respect to the entry in total number in figure the original entry which could be read as 1 appears to have been erased and the figure 0 was written.
3. For the Office of Representative in the entry for the votes for candidate Salipada Pendatun the original entry appears to have been erased in that the words 'two' and 'fifty' have been erased and over the word is written the word 'seven'. The original entry could be read however and 'two hundred fifty' as altered reads 'seven hundred'. In the total votes obtained in figures the original entry which could be read as 250 has been erased and over which is written the figure 700.
The Committee also observes that the election return for Prec. No. 15, Pikit, Cotabato, copy for the Comelec, contains alterations in the entries not only on the data on voters, data or ballots, and votes for the Office of Representative as stated above but also for the Office of President, Vice-President, Senators, and Special Election for Members of the Provincial Board, with respect to the votes of candidates Osmeña, Lopez, Ganzon, Ilarde, Liwag, Mañalac, Padilla, Roxas, Sagun, Ziga and Bueñaflor, all of which erasures or alterations are not authenticated by any initials of any members of the Board of Inspectors. It is observed also that both the election returns, copy for Provincial Treasurer and for the Comelec, bear the signatures of the members of the board of inspectors which upon comparison of both copies appears to be similar. The same observation is made with respect to the envelopes and seals of both election returns.
... Annex "F", Petition, at pp. 2-4, emphasis supplied.äüsl•älFº
In the light of these facts which I consider to be undisputable because they can be readily perceived in the document itself which has the nature of real evidence, (If the Comelec had only granted petitioner's motion that it be re-examined, the matter now in issue would have been settled then and there.) the real issue for the Court to determine is not really whether or not the said Comelec copy should be used. Rather, the questions the Court must decide are: (1) did the Comelec commit a grave abuse of discretion in refusing to re-examine the Comelec copy in question, having in view the tendency of the above-quoted report submitted by the committee it had created to investigate the same, and (2) what was the number of votes for respondent Pendatun shown on said copy when the honorable commissioners examined it on December 24th? Was it 250 or 700? Surely, since the Comelec is certain that the said copy was clean and untampered with at that time, only one of these two figures now appearing therein must have been the one there then. Which was it?
The truth is that on this particular point, there is no direct testimonial evidence extant in the record. I have carefully read the transcript of the proceedings below, portions of which are quoted in the opinion of Mr. Justice Zaldivar. Nowhere therefrom can the above question be answered. Very importantly to be noted is that what is very clear from the remarks of Commissioner Patajo, sanctioned seemingly by the silence of the other two commissioners, is that when the said copy was examined by them on December 24th, there were no alterations or erasures thereon and that the Commissioner was most emphatic in pointing out that the danger in allowing a re-examination of the document lay in the danger that a bad precedent would be created whereby the door would be opened for opportunity for parties to make alterations on documents after the Comelec has already examined them and found them to be clean and unaltered. In other words, the position of the Commissioners is that once they have seen a return or a copy thereof and have found it to be clean and untampered, particularly, when they have done so in the presence of the parties, it is improper ask them to reexamine the same in order to determine whether or not it is in reality a tampered one, on the ground, as We gather it, principally, of estoppel, albeit Mr. Justice Zaldivar would add that it would amount to casting doubt as to the integrity and veracity of the commissioners. What is overlooked, however, is that what was more important does not appear to have been done by the Comelec or by any of the parties on December 24th and, that is, to make of record what was the "clean and untampered" number of votes of respondent shown in the copy in question when it was examined by all of them on that momentous date of December 24th, whether it was 250 or 700.
If this Court has to be procedurally technical, the proper thing to do is return this case to the Comelec for a specific finding of fact on this point. Even if it were possible to apply estoppel to petitioner, which We seriously doubt can be done, considering that this is an election case, (but We do not deem it necessary to make here any express holding to that effect) the estoppel should be as to number of votes of respondent which appeared on said copy on December 24th, and that is precisely what the Comelec did not determine when it denied the re-examination. We opt however, not to insist on procedural technicalities. We hold that the above-quoted report of the Comelec committee furnishes enough basis for a safe conclusion which, after all, cannot be altered even if We return this case to the Comelec. Besides, it is still uncertain whether or not the number of votes involved in this question will affect the result of the election in question, and since the result in said Precinct 15 is not the only one involved in this case, We feel it is better that this Court resolve the point under discussion now even without complying with such technicality.
From the above-quoted, report of the Comelec committee, the conclusion is inescapable that the original figures entered on the Comelec copy in question before the same were altered showed that respondent Pendatun obtained only 250 votes. The report is definite to the effect that the number 700 visible therein is a superimposed one. This is true, not only as to entry of the number of votes for respondent, as already stated, but also as to the number of registered voters, the number of voters who actually voted and the number of ballots found in the compartment for valid ballots. And the obvious superimpositions do not appear only over figures but also over the corresponding numbers in words, except as to the entry of the number of ballots found in the compartment for valid ballots, as to which there was not only the superimposition of the words "four hundred fifty" over an erasure, but there is also the detail that the words "two hundred fifty plus" also appear written above the superimposition. The report is also consistent to the effect that all the erased original figures which are still legible indicate that the respective entries read two hundred fifty in words and in figures, not only for the votes of respondent but also for all the other items aforementioned, except the number of registered voters which is 692.
All things considered, no other conclusion is really possible except that the number of votes of respondent originally entered in the Comelec copy for Precinct 15 of Pikit was 250 and that the board of canvassers should use in the canvass this original figure and not the 700 which has been superimposed over it.
5, 6, and 7. The other issues relative to the application of the Lagumbay decision as to pattern of manufactured return. The rest of the issues involve in one way or another the alleged applicability or inapplicability of what is repeatedly being referred to as the Lagumbay doctrine regarding the pattern of voting which denotes manufacturing.
To have a better perspective for our discussion of these issues, it is perhaps best to start with a clarification of what is this that is being repeatedly referred to as the Lagumbay doctrine. In truth, the real doctrine basically involved in these issues is the one laid down in the case of Nacionalista Party vs. Comelec wherein the case of Mitchell vs. Stevens was cited with approval. The Lagumbay decision was only an application of the doctrine already formulated in those previously mentioned cases. Substantially and in essence, the doctrine may be stated as follows: Any election return which on the basis exclusively of data found on its face appears to be obviously and patently false is nothing but a manufactured return which should not be accorded any prima facie value as evidence of the result of the count and should be disregarded in the canvass. Thus, in the Mitchell case, the data appearing in the return of a precinct showing that the votes credited to a candidate was greatly in excess (by over 2,000) of the number of registered voters in said precinct, as shown in the same return itself, was considered as a manufactured return and disregarded in the canvass. In the Lagumbay case, the 100% pattern of voting for all the candidates of one major national party and the complete systematic blanking of all the candidates of the other major national party, appearing on the face of all the returns from 50 precincts, was considered as giving rise to the presumption that said returns were false and manufactured, such a pattern of voting being regarded by this Court as something statistically improbable. In other words, the conclusion of falsity in the Lagumbay case was a mere inference drawn from the utter improbability, statistically speaking, of the pattern of voting shown in the returns therein involved.
There can be no question as to the wisdom and timeliness of the Lagumbay decision. As the Court said "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 Comelec's missions to insure free and honest election." (See p. 28 of the main opinion.) It is important to note, however, that inspite of this characterization, this Court has taken care not to apply the same ruling in any other case that has come before it since then. This attitude of the Court is evidently due to the fact that the Court is aware that an election return is in itself only a presumptive document embodying no more than a legal presumption of correctness in the appreciation of the ballots and the counting and tallying of the votes made by the inspectors, for if it were not so, and it were, on the other hand, a conclusive document, electoral protests and electoral courts and tribunals would have no reason for being. Hence, the Court has chosen to be very restrictive in holding that a return is manifestly fabricated. After all, the basis of the Lagumbay doctrine is also nothing more than a presumption arising, if inescapably from the face of the return itself. The difference between these two presumptions is that whereas the first presumption is a legal one, the second is only one of fact. To set aside the legal presumption of correctness of the count borne by an election return by means alone of a presumption of fact is, of course, something that is obviously delicate and extremely dangerous. From the very nature of these two presumptions, the one of fact has to yield to the legal one, if only because the latter is ordained by law, and this is particularly more logical whenever any reasonable indication exists that the factual presumption may not be altogether valid. Applying these considerations to the case at bar, We hold that the test of statistical improbability applied in the Lagumbay case as basis for the presumption that the returns has not therein involved were fabricated or manufactured has not been successfully hurdled in this case.
It is indeed not accurate to say that the factual setting of the present case is on all fours with that of Lagumbay. True, the pattern of voting in both cases is identical, but unlike in the Lagumbay case where the Court searched in vain for any explanation of the apparent statistical improbability of the questioned returns, here, in this case, there are explanations which more or less justify the pattern of voting shown in the returns herein involved. These explanations are found not only in the affidavits presented by petitioner and discussed in the appealed resolution but also in the information furnished the Court during the oral argument. Whereas in the Lagumbay case, the Court was left guessing as to what happened to the votes of the Nacionalista inspectors in the precincts where Lagumbay and the other Nacionalista candidates got zero, in the case at bar, there are affidavits of the inspectors concerned as well as of other persons explaining why they did not vote for the Liberal candidates. At the oral argument, circumstances were revealed by petitioner and not sufficiently denied, in my opinion, by respondent indicating that the results appearing in the returns are not improbable.
Respondent suggests, of course, that this Court pay no heed to those explanations. The majority opinion makes a long and admirable discourse on the inadmissibility of the affidavits relied upon by petitioner. It seems to me, however, that respondent's posture in this regard is off-tangent. Under the doctrine of manufactured returns, as I have already pointed out above, it is my view that it is not necessary to inquire as to whether or not the explanation offered to destroy the presumption of fabrication is entirely true or not. The only question to determine is whether or not such an explanation is such a reasonable one that if proven to be true, it would be sufficient to offset the presumption of fraud arising from the data on the return. As long as there are indicia of evidence to support the explanation, the better rule is to disregard the presumption of fraud and recognize the legal presumption of regularity in the performance of official duty informing the return and leave it to the corresponding electoral tribunal to determine, as in any other case, whether or not the return is indeed falsified. In other words, since the putting up of a factual presumption against a legal presumption would naturally leave the Court in an uncharted sea of conjectures and because this dangerous venture does not square with the requirements of such pragmatic matter like the determination of who has been given the popular mandate in an election, it is no doubt the safer course to take that whenever there is anything in the record or from the information duly given to the Court which, if true, can serve to explain a unique or peculiar manner of voting which bears earmarks of presumptive fraud, the effort should not be towards minimizing the explanation, as respondent would want this Court to do, but rather, towards giving due regard to the explanation, if it is feasibly demonstrable and evidence, admissible in character, is shown to be available to prove the same. In short, resort to the presumption of fraud should only be a last recourse.
Apropos to this discussion are the following considerations on which this Court, thru our venerated present Chief Justice, predicated its decision in the recent case of Rasid Lucman v. Macacuna Dimaporo, G.R. No. L-31558, May 29, 1970:
Petitioner impugns the foregoing conclusion upon the ground that: (1) the affidavits for Respondent are inadmissible as hearsay evidence, because the affiants could not be cross-examined, the Commission having refused to summon them, despite timely motions filed by Petitioners; (2) the testimony of the election registrar is unworthy of credence; (3) the affidavits for the Petitioner include those of some members of the PC and CNEA watchers, which are supported by the report of the Special Action Team of the Commission, and, hence, should be accorded much weight; (4) the presumption of regularity is inapplicable to the case at bar; and (5) the returns for Precincts Nos. 3, 4-B and 15, of Balabagan had been excluded by the Commission in its canvass of the returns for senators, as obviously manufactured.
The first ground relied upon by Petitioner is untenable, for:
(a) The records show that the Commission had indicated its intention to determine the case on the basis of the affidavits and the documentary evidence introduced by the parties and that it was with such understanding that Respondent filed affidavits in his favor and did not object to those made for Petitioner herein.
(b) Petitioner's objection would be plausible if the Commission were a court of justice or could determine and settle with finality the issue of fact raised in connection with the returns for the municipality of Balabagan. The Commission has no such authority. Hence, when, upon denial of Petitioner's motions for the issuance of subpoenae to the affiants for Respondent herein, Petitioner instituted Case No. L-31430 of this Court — to compel the Commission, by mandamus, to, inter alia, issue the aforementioned subpoenae — We forthwith dismissed the petition therein and, soon thereafter, denied Petitioner's motion for reconsideration of our resolution of dismissal of the case.
Indeed, in connection with the canvass of the returns for the office of member of the House of Representatives for Lanao del Sur, the functions of its Provincial Board of Canvassers is purely ministerial in nature. In fact, in his original petition for exclusion, filed with the Board, petitioner quoted from Dimafiles v. Comelec (L-28396, December 29, 1967):
'A canvassing board performs a purely ministerial function — that of compiling and adding the results as they appear in the returns transmitted to it. This is the teaching in Nacionalista Party v. Commission on Elections: "the canvassers are to be satisfied of the genuineness of the returns — namely, that the papers presented to them are not forged and spurious, that they are returns, and that they are signed by the proper officers. When so satisfied, ... they may not reject any returns because of informalities in them or because of illegal and fraudulent practices in the elections.'
Equally ministerial, therefore, is the function of the Commission, in the exercise of its supervisory power over said Board, pursuant to our Constitution and laws. (Sec. 2, Article X of the Constitution and section 2 of R.A. No. 180.) There being no law vesting in either the power to decide and settle the question whether the election returns of given precincts have been prepared without counting the votes cast therein, their views in connection therewith, whatever they may be, do not foreclose the subsequent determination of that question in the corresponding election protest, if any. So long as the election returns have been accomplished in due form, the Board, and, on appeal therefrom, the Commission, must include said returns in the canvass.
(c) Lagumbay v. Comelec, supra, presented a peculiar situation. Two (2) sets of returns were involved therein. 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 ... 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; ... whereas, all the candidates of the Nacionalista Party were given exactly zero in all said precincts." As a consequence, this Court held that said returns were "obviously manufactured," contrary to all statistical probabilities," "utterly improbable and clearly incredible." It should be noted that this was not strictly an issue of fact. Indeed, the main elements essential to its determination appeared on the face of the return themselves. In other words, there was no dispute as regards elements. The dispute boiled down to the proper conclusion to be drawn therefrom, and, hence, it partook of the nature of a question of law. (Joaquin v. Navarro, 93 Phil. 257, 269-270, Cunanan v. Lazatin, 74 Phil. 719, 724; Luna v. Linatoc, 74 Phil. 15.) What is more, in the view of this Court, that conclusion was clear, obvious, manifest, and indubitable.
Such is not the situation obtaining in the case at bar. The irregularity pointed out by the Petitioner is denied by Respondent, thereby raising a purely factual question. Instead of settling the same, the affidavits submitted by both parties merely stressed the contentious nature of the issues. Moreover, the same could not have been wiped out or even minimized by the presence and cross-examination of the affiants for Respondent, had they appeared before the Commission. In other words, unlike the condition of the returns involved in the Lagumbay case — which this Court considered incontestable — that existing as regards the returns for Balabagan is clearly a very controversial one, which the Commission has no power to decide with finality.
(d) The Commission could not, moreover, summon the affiants for Respondent, without granting him the same right to examine the affiants for Petitioner. This would have entailed a full-dress elucidation of the aforementioned issue of fact, which, after all, the Commission cannot settle authoritatively. Worse still, it would create a situation fraught with possibilities, inimical to the spirit of the laws establishing boards of canvassers.
It is well settled that the same are meant, not only to discharge purely ministerial duties, based upon returns submitted thereto in due form, but, also, to perform this function summarily, so that winning candidates could assume their office on the date set for the commencement of their term. The main role of the Commission in connection therewith is to see to it that such objective be carried out. The theory advanced by petitioner herein would, however, induce the candidates who are likely to lose, on the basis of said returns, to raise questions of fact requiring the introduction of testimonial evidence thereon. If sustained, its effect would be to delay, far beyond the time envisaged by law, the proclamation of the winning candidates and their assumption of office, thereby depriving the people, in the meanwhile, of the representation they are entitled to. Again, there would be an unnecessary duplication of the proceedings peculiar to election protests, with the consequent possibility of having different results and the serious dangers concomitant therewith.
Moreover, in my opinion, the affidavits offered by petitioner are not really as worthless as respondent pictures them to be. The fact that they are of one style or wording is nothing unusual, since in actual practice, the words of an affidavit are not necessarily those of the affiant and when the same matter is to be attested to, almost invariably, the affidavits of several persons appear to be identical mutatis mutandis, without minimizing in any significant degree their intrinsic worth for the purpose for which they have been prepared, and the fact that they were taken even before this case arose only proves that petitioner had anticipated the possibility which has in fact materialized that the pattern of voting in the precincts concerned would be likened to that in the Lagumbay case. It was only natural, therefore, for petitioner to prepare the ground for the position he would take and which he has now taken. That the affidavits seem to be irregular because of abnormalities in the data regarding the residence certificates of the affiants and the numbers of entries in the notarial registers of the notaries public before whom they are supposed to have been subscribed and sworn to, and even the fact that copies thereof were served very late upon respondent's counsel do not really affect their inherent veracity. As a matter of fact, their truthfulness has not been challenged by respondent with any counter-affidavits even up to this date. What is vital is that those affidavits exist unrebutted.
In the Sangki case, this Court held:
In Lagumbay, there was uncertainty as to what happened to the vote of the Nacionalista Party inspector in the disputed precincts, because the absence of his vote was unexplained. Here, respondent Pendatun explained, through affidavits of a good number of the Nacionalista Party inspectors themselves attached to his answer, that some did not vote because they were not able to register as voters; that two Nacionalista Party inspectors in Pagalungan did not vote for candidates Sangki and Saludo but for the Liberal Party candidates for Governor and Vice-Governor because they "are more qualified than the former two who are foreign to our Municipality"; and that other Nacionalista Party inspectors believed that the Liberal Party candidates "are more qualified than the Nacionalista Party candidates." These averments we are constrained to say, reduce this particular point to a question of fact. [21 SCRA 1395-1396] (Emphasis Ours)
The real import of this last statement is that when affidavits are offered in support of an explanation that will do away with the presumption of fabrication, the issue becomes one of actual, and not presumptive, fact, hence, the factual presumption must be laid aside and the issue of fact must be resolved no longer by the board of canvassers nor by the Comelec, but by the appropriate electoral tribunal. As far as the canvassers are concerned, the legal presumption of regularity in the performance of duty of the inspectors must prevail and the return must be read as is.
At this juncture, it is also relevant to consider that by its very nature, the concept of statistical improbability is one that is rather relative, depending on the circumstances of time, place and person as these are judicially cognizable at the moment of its invocation. Before Columbus, the idea that the world is round was almost a heresay. Even more, references to the whole earth in the Holy Scriptures, particularly the Old Testament, may not be reconciled with what is actually known as the world today. The man on the moon was merely a poetic expression not so long ago. Man's conduct and attitudes vis-a-vis his fellowmen have never been constant. Political ideologies, principles and parties and adherence and loyalties thereto are as variable as the demands of the people's welfare dictate. Alliances among men and nations depend on changes of circumstances not always foreseeable. The United States and Russia were allies in the last world war, only to be apparently irreconcilable enemies today, while Japan whom Americans compelled to surrender as a hated militaristic totalitarian state is presently one of Uncle Sam's closest nephews even in the absorption, at least, apparently, of democratic ideals. In the very area of politics which is under discussion, President Nixon confounded dopesters who foretold political doom for him after his defeat in the gubernatorial elections in California in 1966. Our own President Marcos did an unbelievable feat in winning not only a re-election but by being the first re-electionist to capture Manila, the seat of the opposition. As Senator Tolentino once remarked to this Court, in the politics of our country, what was improbable in 1965 may yet be the thing most probable today. The point is that extreme care must be taken in adopting any presumption of improbability in electoral matters and only whenever every probable or demonstrable possibility has been discarded must it be accepted. Come to think of it, it would not be illogical to realize that the Lagumbay case, adjudged as it was, and ought to be understood as it must be always, as predicated on its own peculiar and particular circumstances, is not only the one of its kind until now but the only one that will ever be.
I need not dwell at length on the other cases discussed by the respondent and also in the majority opinion. Suffice it to say at this point that, as observed by the Mr. Justice Zaldivar, in all of them, this Court refused to apply the doctrine under discussion, for the simple reason that in all those cases, the statistical improbability alleged to exist had reference to excess of votes which could not be considered really great or to patterns of voting less than 100% for one party and 100% against another. The present case is in the first one wherein the pattern of voting is identical to that in the Lagumbay case, but, as I have pointed out earlier, the difference between the two cases lies in that here, unlike in the Lagumbay case, there are indications of substantial and reasonable evidence of facts which if true would remove the props of the factual presumption of improbability.
Anent these explanations, another question that arises is as to whether they must appear on the face of the return itself or they may be based on evidence aliunde or on facts found outside of the return. Of course, it must be the latter, for if the explanation is apparent on the face of the return, then there could not be any seeming or presumed improbability evident in the return itself. Thus in the case of Estrada vs. Navarro, L-28340 and L-28374, December 19, 1967, 21 SCRA 1514, this Court refused to draw the conclusion that the return therein in question was manufactured notwithstanding that the data appearing on its face bore enough indications of excess votes on the ground that the minutes of voting justified a contrary conclusion. As can be observed, the minutes of voting to which the Court referred was a document distinct from and outside of the return.
This was the same ruling conversely stated in the case of Demafiles vs. Comelec, L-28396, Dec. 29, 1967, 21 SCRA 1962. In that case, this Court held that the conclusion of statistical improbability must be drawn from data formed in the return itself and not from external evidence. It is thus clear that the rejection by this Court of evidence aliunde is not of evidence that would prove an explanation offered to destroy the factual presumption of fraud but of evidence that is intended to serve as basis for such factual presumption. Naturally, this Court had to rule that in the latter case, the evidence cannot be entertained, for the obvious reason that the doctrine of manufactured return refers to a presumption that arises exclusively from data on the face of the return. On the other hand, the Court has allowed evidence aliunde to rebut the factual presumption of fabrication, as in the Estrada case, for the reasons I have already discussed, the most important of which is to remove the basis of the proclamation as far as possible from speculation, and, if necessary, to use only those presumptions which are expressly provided by law. In the Estrada case, supra, this Court said:
G.R. No. L-28374. This is a petition for review of an order of the Commission on Elections involving the election return in precinct No. 94 of San Juan, Rizal. Petitioner applied to the Commission for an order directing the municipal board of canvassers to reject or disregard the said return on the ground that it was "clearly manufactured." Reliance is placed on the decision of this Court in the case of Lagumbay vs. Commission on Elections, G.R. No. L-25444, January 31, 1966. The return in question shows the following data:
| Number of voters registered in precinct ... Four hundred nine .................. | 409 |
| Number of voters who actually voted ..... Two hundred twenty-nine ...... | 229 |
| Ballots found in compartment for valid ballots ..... Three hundred ........... | 300 |
The same election return shows the following number of votes received by the various candidates for Mayor, to wit:
Total Votes Total Votes Obtained Obtained (In words) (In figures)
| 1 Domingo, Braulio Sto.................. One hundred seven | 107 |
| 2. Estrada, Joseph ........................... Eighty two | 82 |
| 3. Ibuna, Nicanor ............................. One hundred eight | 108 |
| 4. Lenon, Enrique ............................ One | 1 |
It is claimed by petitioner that the return is obviously manufactured, considering that while there were only 229 voters who actually voted 300 ballots were found in the box for valid ballots. Upon its face the claim would seem clear and irrefutable, for it is mathematically impossible for 229 voters to cast 300 valid votes, or 298 votes in the aggregate for the four contending candidates for the position of Municipal Mayor.
However, a conclusion that an election return is obviously manufactured or false and consequently should be disregarded in the canvass must be approached with extreme caution, and only upon the most convincing proof. The decision in the Lagumbay case speaks of "inherent improbability" in the data shown on the return. Any plausible explanation, one which is acceptable to a reasonable man in the light of experience and of the probabilities of the situation, should suffice to avoid outright nullification, with the resulting disenfranchisement of those who exercised their right of suffrage. In this case there is such an explanation. The minutes of voting prepared and signed by the election inspectors in precinct No. 94 show that the total number who voted is two hundred ninety-nine (299), in both words and figures, and that of the 300 ballots in the box for valid ballots one (1) was found to be marked and placed in the envelope for 'marked ballots.' These minutes of voting constitute an official document, accomplished pursuant to Section 142 of the Revised Election Code. It is a fair presumption that the number of 229 entered in the election return as the number of those who actually voted is a mere clerical error, and that the correct figure is 299 as shown in the minutes of voting. The correctness of this figure is supported by the other entries in the return, and by the fact that the sum total of the votes counted for the four candidates for Municipal Mayor is 298, with one ballot rejected and placed in the envelope for marked ballots.
Everything considered, we find no justifiable ground on which the return in question may be annulled. (Pp. 1519-1520)
Upon these considerations, it is our considered view and conclusion that the Comelec erred or abused its discretion in sanctioning the rejection by the board of canvassers of the returns of the 22 precincts in question. I hold that taking all relevant circumstances into account, particularly the explanations offered by petitioner, this case may be differentiated from the Lagumbay case and so, the said 22 returns should be canvassed as they are.
Coming now to the returns from Precinct 6 of Upi and Precincts 13-A, 14, 19 and 23 of Datu Piang which the Comelec refused to consider as falling within the doctrine of manufactured returns, I have a different view, except as to 23. In the 22 precincts involved in our previous discussion, we held that the Lagumbay doctrine is not applicable because although a pattern of presumptive fraudulent voting is discernible on the faces of the returns therefor, petitioner has offered reasonable and substantial explanations which, in our opinion, suffice to rebut such presumption of fabrication. With regard to the precincts now in question, not a single affidavit has been offered by either of the parties. We note, however, that in Precinct 23, according to Annexes 27 and 27-D of respondent, there was no 100% voting for any party, so the Comelec resolution regarding the same should stand.
The Comelec held that the Lagumbay ruling is not applicable to the said returns only because instead of a 100% voting for all the candidates of one party as against that of one another, what appears is that two or three candidates of the Nacionalista Party or the Liberal Party, as the case may be, received the same votes as the candidates of the opposing party, at the sacrifice, of course, of two or three corresponding candidates of the other who were not credited with any vote. To my mind, this pattern of voting is even more statistically improbable than the 100% voting for one party in the Lagumbay case. I maintain that if it is well nigh impossible to make all the voters of one precinct vote for the straight ticket of one party, it is next to impossible to make them vote for a straight ticket of candidates of different party affiliations, particularly if the variations refer exactly to the same candidates. Thus, how can it be believed, in the absence of any factually demonstrable explanation, that each and everyone of the 221 voters who voted in Precinct 19 of Datu Piang had decided to vote uniformly for the presidential and vice presidential candidates of the Liberal Party, the Nacionalista candidate for member of the provincial board and the same six Liberal senatorial candidates, namely, Cases, Ganzon, Liwag, Roxas, Sagun and Ziga and abandon the same two other Liberals, Ilarde and Mañalac, in favor of the same two Nacionalista candidates Palmares and Tamano? To top it all, this happened not only in one precinct, but in three precincts.1
The voting appearing on the face of the return from Precincts 6 and 35 of Upi follow the same pattern in the reverse. In these returns, there were two Liberal senatorial candidates joined with six Nacionalistas. The same result must follow, except that with respect to Precinct 35, it is to be noted that the objection to the action of the board of canvassers was not prosecuted in the Comelec, much less in this Court.
I, therefore, vote to reverse the ruling of the respondent Comelec as to Precinct 6 of Upi and Precincts 13-A, 14 and 19 of Datu Piang, without prejudice to the parties offering reasonably probable and demonstrable evidence, before the canvass is finished, of any explanation that can overthrow the factual presumption of improbability.
8. May the Comelec order the preparation of another return?
The next question to resolve is one of the gravest importance. Assuming that the Lagumbay doctrine applies to the 22 returns above referred to, can the board of canvassers prepare a certificate of canvass in complete disregard of the possible result of the election in said precincts? In other words, can the board of canvassers omit altogether in its canvass the votes cast in those precincts? Generalizing the question, should the votes in a precinct be ignored in a canvass only because the return therefor has been so illegally prepared that its contents cannot be given prima facie value or should a proper return be ordered prepared for the purposes of the canvass? If the overall outcome of the election for congressman herein involved cannot be affected by such possible precinct results, it may perhaps be easy to simply say that in the interest of the speedy announcement of the results of the election, it would not be of any legal consequence to pay no attention to the said votes. It is a fact, however, that such result will be very materially altered, so it is imperative that we determine the right answer.
Respondent contends that since in the Lagumbay case the 50 precincts involved were not included in the canvass after the returns therefor were found to have been fabricated, the 22 precincts herein involved should suffer the same fate, as if that decision had established a binding precedent on the matter. The truth, however, is that it did not.
As a matter of fact, strictly speaking, this issue was not passed upon in the Lagumbay decision nor even discussed in it. Respondent's counsel himself observes that it was already in the motion for reconsideration of the minute-without-prejudice-resolution of this Court declaring the questioned returns invalid that Climaco's counsel raised for the first time the issue that instead of merely disregarding the fabricated returns and excluding the precincts concerned from the canvass, the corresponding boards of inspectors should be reconvened and ordered to prepare new returns. As already indicated, however, in the extended opinion of this Court which also denied Climaco's motion for reconsideration, not even a passing mention was made of this argument. Looking back, we can only say that the Court must have felt inclined to leave things as they were after the promulgation of the minute- without-prejudice-resolution because at the time the motion for reconsideration was resolved on January 31, 1966, Senator Lagumbay had already been proclaimed, in virtue precisely of the said resolution, and had furthermore taken the oath and assumed office, and consequently, the whole matter of the legality of his election, including, naturally, this particular question, had already fallen more appropriately within the competence and jurisdiction of the Senate Electoral Tribunal. How then can it be rightly said that in this case the court has no alternative but to follow the Lagumbay "precedent"? To attribute doctrinal value or the effect of a binding precedent to the silence of the Court on a matter of transcendental importance is not in keeping with the dignity and authority supposed to inform decisions of tribunals of last resort. It is extremely improper to speculate regarding the mind of the Court as to matters on which it has not made any express ruling.
Indeed, under these circumstances, it would be tantamount to judicial dereliction for this Court to hold that the door is already closed to this Court to now rule squarely on such a grave issue of far-reaching significance, considering specially that, to paraphrase an observation of Mr. Chief Justice Bengzon in the Lagumbay decision, the point is being pressed upon Us now in a more clear-cut manner, as never before. Withal, what should weigh heavily upon Us as a self-imposed responsibility is that by the trend of our decisions subsequent to the Lagumbay case, this Court has leaned towards a more practical, more expeditious and less technical approach to the solution of electoral cases, with the end in view of striking at the root of all controversies sans non-fundamental technicalities of procedure, thereby effectuating as speedily as possible the apparent will of the electorate and, as importantly, also giving flesh and bone to the necessary power and jurisdiction of the Comelec as the body entrusted by the constitution with the sacred duty of making elections in this country free, peaceful and orderly, and by clear implication, genuine and not a mockery, whenever all these can be achieved by it without encroaching into or corroding the equally constitutionally allocated jurisdiction of the corresponding electoral tribunals. Be it remembered that the Lagumbay case was decided in 1965 and 1966; thereafter, We decided the case of Pacis2 on February 10, 1968 and hardly two weeks later, on February 21, 1968, that of Mutuc.3 These are the cases that are really relevant to the present issue, because in them, Our decisions picked up, as it were, from where Lagumbay was unable to proceed because of the jurisdictional reason already stated. It is by the examination of these decisions, including the one of Tiglao,4 that We can clearly see the trial We have been since pursuing. Indeed, how did this Court approach the issue now before Us subsequent to Lagumbay?
It is to be admitted that in the second Pacis case, there was no order for the board of inspectors of Precinct 22 to prepare a new return notwithstanding that the return first prepared by them was found to have been filled up at gun point. It is obvious, however, that under the facts of that case, no new count could be made, for the simple reason that the contents of the ballot box involved had already been tampered with. According to the Comelec resolution in that case, "[n]either would it be of any help if the ballot box will be opened and we were to look for other election documents, since the tally sheet and the tally board were missing and the ballot box itself was left open from the morning of November 15, 1967 up to the afternoon of November 16, 1967." Naturally, a new count would not have served any legitimate purpose and would have been improper, even if judicially undertaken (Resolution, Chiongbian vs. Comelec, G.R. No. L-19202, February 20, 1962). Nevertheless, this Court already gave an emphatic indication of the efforts that should be made when copies of the election return are found to be unserviceable. The following words of Mr. Justice Sanchez, speaking for the Court, should never be lost sight of, full of wisdom, principle and practicality, as they are:
1. Comelec's broad power under the Constitution and the statutes has gained judicial approval. The rationale is that Comelec is entrusted with the "enforcement and administration of all laws relative to the conduct of elections" and the authority to decide "all administrative questions, affecting elections" — all of which rest upon the purpose of Comelec: to insure free, orderly and honest elections. (Sec. 2, Article X, Constitution). Indeed, the diversity of election frauds and anomalies that have been concocted by rival parties, surpassing legislative anticipation and scuttling the prescribed manner of conducting elections, necessitate resort to Comelec's general power of administration and supervision.
This Court has set down the rule that when returns are obviously manufactured or palpably irregular, the canvassing board may reject them (Tagoranao vs. Commission on Elections, L-28590 and Cota Cornell vs. Commission on Elections, L-28598, March 2, 1968, 1968A Phild. 806, 813; Ong vs. Commission on Elections, L-28415, January 29, 1968, 1968A Phild. 248, 254, citing Nacionalista Party vs. Commission on Elections, 85 Phil. 149, 157, 158, and Lagumbay vs. Climaco, L-25444, January 31, 1966). The board's decision is open to review by Comelec which has the power to investigate irregularities and to act upon the propriety or legality of the canvass made by the board (Espino vs. Zaldivar, L-22325, December 11, 1967, 1967D Phild. 670, 681, 684, and citations therein). But it is to be emphasized, this power to reject returns must be exercised with "extreme caution" (Tagoranao vs. Commission on Elections, supra.) Popular will must not be suppressed at the slightest cause.
"Clean elections," we have said in the first Pacis case, "control the appropriateness of the remedy." This we will have to underscore once again. Because acts of terrorism or fraud the purpose of which is to destroy the integrity of election returns must have to be discouraged. For, they may eventually defeat the will of the majority and, as Chief Justice Concepcion has emphasized, would "undermine the foundation of our democracy" (Ututalum vs. Commission on Elections, L-25349, December 3, 1965, cited in Janairo vs. Commission on Elections, L-28315, December 8, 1967 and Abes vs. Commission on Elections, L-28348, December 15, 1967). The purpose of the Election Code "to protect the integrity of elections and to suppress all evils that may vitiate its purity and defeat the will of the voters" (Cauton vs. Commission on Elections, L-25467, April 27, 1967) gives Comelec authority to ascertain whether the genuineness of a given election return may yet be salvaged by an examination of the said return.
Indeed, hindsight has long confirmed our view that the unscrupulous finds illegal doctoring of election returns as an effective short cut to prevent the proclamation of the true winner and leave him to the long tedious task of an election protest — if the aggrieved party still has the means to undergo the same. Which, as well observed by Chief Justice Bengzon, could only result in a Pyrrhic victory (Lagumbay vs. Climaco, supra). Comelec then must strain every effort to ascertain the true returns to be used in the proclamation, a possible alternative being that the victor will be cheated of his victory; the seat that is justly his will be occupied by one rejected at the polls; our democratic institutions will suffer in integrity.
With these thoughts to guide us, we first look into Precinct 19 (Precinct 18 is no problem).
Comelec made a thorough investigation concerning the alleged irregularities. It even made use of the services of the NBI to determine the original erased entry for Pacis and the testimony of the chairman and poll clerk of the precinct. It was there ascertained that Negre obtained 73 votes, to Pacis' 89. This is no abuse of discretion on the part of Comelec. If the true result of the voting in Precinct 19 could still be determined, it is within Comelec's power to direct that they be used in the canvass. And this was done. (Pacis vs. Comelec, L-29026, supra)
Of similar telling import are the principles stressed by Mr. Justice Sanchez in the first Pacis case:
The December proclamation of Negre is open to attack from another direction. The board of canvassers did not include in the canvass the returns from Precincts 18, 19, 21 and 22. It is to be borne in mind that the results of the vote-counting from these four precincts are decisive of the election.
It is true that in Espino vs. Zaldivar, L-22325, December 11, 1967 citing Nacionalista Party vs. Commission on Elections, 85 Phil. 149, 158, We declared that the canvassing board will not be compelled to canvass returns which are obviously manufactured. This does not mean however that the board and Comelec, when faced with this situation, should right away disregard the votes cast in precincts where returns were doctored. There are four copies of official returns. Allegedly both the municipal treasurer's and Comelec's copies were tampered. But it was the duty of the board to report the matter to Comelec. Comelec could then hew the line drawn by Cauton vs. Commission on Elections, 1967B Phild. 248, 255, where this Court declared that, in case the election returns were tampered, "it is certainly within the power of the Commission on Elections to issue such order as would ascertain the existence of the genuine, authentic and untampered election returns." Comelec could inquire into the copies of the returns from the provincial treasurer. And if these copies are not authentic, Comelec should look into the copies of the returns in the ballot boxes. These should have been done. First. Because exclusion from canvass of returns decisive of an election is an act which lends itself to misuse by the board. Second. Sound practice seeks to accommodate every plausible theory which will discourage if not eliminate, minimize if not curb, unlawful proclamation of, and assumption of public trust by, the wrong man. Clean elections control the appropriateness of the remedy. (Pacis vs. Comelec, 22 SCRA 539, 554-555).
At this juncture, it should be considered that in elections, the significance of a regular and proper proclamation can never be over-emphasized. From the fact alone that such a proclamation gives the person in whose favor it is issued the right to possess and exercise all the prerogatives and attributes of the office in dispute, one can easily see how important it is that every care must be taken so that the proclamation may be as legal and complete as it is humanly possible to make it so. True it is that in the ultimate, the question of who has been duly elected may be decided in a protest, but this is no reason why all controversies affecting the canvass and the returns should immediately be shoved to the electoral tribunals. The final decision of these tribunals, no matter how fast and how correct, cannot replace or supersede the role of a proclamation.
Needless to say, a correct proclamation is as important, if not more so, than the final result of the protest, particularly, from the practical standpoint because it is not unusual for the wrong candidate to be proclaimed and the winner of the protest to be able to serve only an insignificant balance of the term for which he has been elected. It is precisely because of these considerations that the election law has elaborate provisions specifying in detail who are to make the canvass and when and how it should be made, stating categorically that such canvass "shall proceed" on the basis of "all the statements" (returns) and "all the votes in the province" (Secs. 158, et seq., particularly Sec. 160 of the Revised Election Code). In other words, the proclamation is the first proof, recognized by law, that a candidate has been elected, that is, that he has garnered the required number of votes to be entitled to the office as against his rivals. This proof cannot have due weight unless it has been properly established; its basis is the canvass; but if the canvass is incomplete, the proof is correspondingly insufficient; and a canvass cannot be complete, unless the returns from all the corresponding precincts are included therein. The purpose of the canvass is to determine the result of the election as shown by the official returns; necessarily, a canvass cannot be reflective of the true vote of the electorate unless all the returns are considered and none is omitted. The only exception to this would be when there is no feasible and expeditious way of determining the votes in a precinct, such as when the tally sheet appears to have also been tampered with or manufactured in the same way as the return, or the ballots themselves have either been actually tampered with or there are indications that the security and integrity of the same have been destroyed. The validity of these propositions are self-evident.
Thus, eleven days after the first Pacis case, on February 21, 1968, in the Mutuc case (supra), this Court explained the imperative need for taking all returns into account in the canvass in the following unequivocal terms:
It is now a settled doctrine that an incomplete canvass of votes is illegal and cannot be the basis of a subsequent proclamation (See, e.g., Demafiles vs. Commission on Elections, L-28396, Dec. 29, 1967; Abes v. Commission on Elections, L-28348, Dec. 15, 1967; Abendante v. Relato, 94 Phil. 8 [1953]). Indeed, it is the ministerial duty of a municipal canvassing body to count the votes cast 'in the same manner as hereinbefore provided for the provincial board [of canvassers]', (Rev. Election Code, sec. 168) which means to say to count all the votes cast. Thus, section 160 of the Election Code enjoins provincial boards of canvassers as follows:
'As soon as all the statements are before it but not later than fifteen days next following the date of the election, the provincial board of canvassers shall proceed to make a canvass of all the votes in province for national, provincial and city candidates, and upon the completion of the canvass, shall make, as the case may be, separate statements of all the votes received by each candidate ...' (Emphasis supplied)
A municipal board of canvassers must therefore count all the votes cast in the election and, for this purpose, must consider all returns presented to it by the municipal treasurer. If material defects there are in the form of the returns, it must send them back to the corresponding boards of inspectors for correction (Rev. Election Code, sec. 162). If certain precincts have not sent in their returns, the board must send for them, and the fiscal should forthwith institute criminal proceedings against those who may be criminally responsible for the delay (Id., sec. 161). If there is a discrepancy between two authentic copies of an election return and the difference affects the result of the election, the board may ask the proper court of first instance to order a recount of the ballots (Id., secs. 163 and 168).
All these serve to underscore the need to count all the votes cast in an election. Only when the returns are palpably irregular or obviously manufactured may they be rejected (e.g., Lagumbay v. Commission on Elections, L-25444, Jan. 31, 1966, 16 S. Ct. Rep. Ann. 175; Nacionalista Party v. Commission on Elections, 85 Phil. 149 [1949]) but even then the board must exercise 'extreme caution' (Estrada v. Navarro, L-28340 & L-28374, Dec. 29, 1967). And where a return is falsified, the board may Apply to the Comelec for authority to use another copy which is genuine and authentic (Ong v. Commission on Elections, L-28415, Jan. 29, 1968; Espino v. Zaldivar, L-22325, Dec. 11, 1967). Why must all the votes be counted when there is a need to finish the canvass on time so that proclamation can be made before the beginning of the term of office? Because to disregard returns is in effect to disenfranchise the voters (Estrada v. Navarro, supra, note 8).
The Comelec was, under the circumstances, bereft of power to order the board of canvassers of Makati to disregard the return from precinct 124, even if it noted from its copy (which was likewise blank or incomplete) that the number of votes cast in the precinct (263) was too small to be of any significance to any candidate. This, because the Comelec has no power to decide questions involving the right to vote, (Nacionalista Party vs. Commission on Elections, supra, note 7) as to disregard a return is in effect to deny the voters their votes.
The above considerations, particularly, this Court's rationalization in the cases of Pacis and Mutuc should suffice to answer the argument that there is neither law nor jurisprudence supporting the proposition that there should be a new count. The import and implications of this Court's opinions in those cases are so logical and so effectuative of the principles underlying the popular suffrage and electoral processes that one is left to wonder how anyone can ever conceive that the law could be so inadequate as not to provide directly or by necessary implication what should be done with votes that would otherwise be left uncounted and ineffective merely because an attempt intended precisely to thwart the correct reporting of the genuine result of the election has been made. It would be tragic to say the least, if the broad powers of the Comelec specially designed in the Constitution to prevent, as far as it is humanly possible to do so, any repetition of previous experiences regarding conceivable tricks, artifices and fraudulent practices in elections, were to be construed as short of enabling that body to ascertain by reasonable means the result of the count of votes, if only for purposes of a complete canvass, only because it has been found that, in violation of the particular provisions of the election law and the commission's circulars and regulations, something has been done with all the copies of the return in a given precinct to make them completely unserviceable. Stated differently, to sustain the view that because the return for a precinct has been found to be fabricated or manufactured, the result of the election in it should not be included in the canvass, is the best encouragement to the perpetration of a new "grab-the-proclamation" scheme, namely, manufacture the return and thereby render useless the votes of the opponent in said precinct sufficient to overturn the result; in which — eventually, what this Court intended to achieve in the Lagumbay case would be defeated and the remedy thereby conceived and enunciated would turn out to be worse than the malady. Indeed, the consequent disenfranchisement of electors by nullifying their votes is worse than not allowing them to vote at all, because in the latter case, it is yet uncertain who would have the palm of victory, whereas in annulment, the votes they have actually cast to give their candidate the majority he has obtained are set aside, at least, until after a long, cumbersome and expensive protest and after the truly losing candidate has already enjoyed the office for sometime.
With these considerations in mind, the challenges that confront Us are clear and ineludible. Are We to pursue the trend of the above decisions or are We going to backtrack? Are We going to capitalize on the trifling distinction that in the Mutuc case, the return was merely blank, while in the present case the returns in question are being held to be manufactured and false? Are We opting to disenfranchise the voters in the 22 precincts in question whose votes can be decisive of the election involved in this case, for no obvious reason of logic or policy at all, and only because nothing of the sort has been done before?
It is alleged that in the Mutuc case, this Court held that all that can be done with "palpably irregular or obviously manufactured" returns is that "they may be rejected," albeit with "extreme caution," and no votes should be counted for the precinct concerned. That is not true. The whole text of the discussion in the Mutuc case above-quoted clearly points towards a single direction, namely, that all efforts must be strained to determine the results of the election in every precinct "because the Comelec has no power to decide the questions involving the right to vote (as) and to disregard a return (or the result in any precinct) is in effect to deny the voters their votes." To rely barely on the statement "Only when returns are palpably irregular or obviously manufactured may they be rejected but even then the board must exercise extreme caution" for the conclusion that no recount can be ordered is to read said statement out of context. It is evident that said statement taken together with the other portions of the opinion does not convey the import that respondent wants to give it — namely, that the only thing that can be legally done is to disregard the questioned return and not to count any votes in the precinct involved.
Then again, in the also recent case of Tiglao v. Comelec, G.R. No. L-31566, February 18, 1970, wherein the name of one candidate was completely omitted in the returns from Precincts 35-A and 36 of Apalit, Pampanga, this Court ordered that "the Comelec should have ordered the boards of inspectors of Precincts 35-A and 36, Apalit, to open the ballot boxes, count the votes for petitioner Tiglao, if any, and make new returns."
Comes now the majority and in a vain effort to evade the necessary consequence of these doctrines rationalizes that while the case of Mutuc involved a return which was blank and in the Tiglao case the questioned returns omitted the name of the candidate Tiglao, the situation in the case at bar is different because here there are returns which are neither blank nor faulted with omission; the returns herein involved are obviously manufactured ones, hence, foregoing precedents do not apply. I must say, with no little disappointment, that this Court has never done this before — try to draw distinctions where none exist. Undeniably, the returns here in question are not identical in form with those in Mutuc and Tiglao, but since when has this Supreme Court ever bothered about dissimilarities in form when the applicability of the same principle is as apparent as logic and morality can ever make it? Never! Indeed, I am fully convinced that the fundamental considerations that propelled the holdings of this Court in Pacis, Mutuc and Tiglao make it imperative and inevitable that We hold that blank returns or ones showing omissions of names of candidates, returns made at gun-point and obviously manufactured or fabricated returns all belong to the same legal category. In all of these instances, it is as if no return at all has been prepared. Consequently, the rule that applies to the first two should also apply to the last two.
The clear implication of the ruling of the majority, as I see it, is that the requirement of Section 160, which, according to this Supreme Court in Mutuc, means that all the returns or the returns from all precincts must imperatively be canvassed, as, otherwise, disenfranchisement of the corresponding voters would result, should be considered as legally complied with as long as all such returns are before the canvassers, even if, as in this case, some of the said returns are palpably unserviceable by standards laid down by this Court itself, such as, "obviously manufactured" and "gun-point" returns and returns all the copies of which appear to have been so erased, altered or forged beyond recognition that none of them can be utilized. In other words, under the majority's theory, where the law speaks of "all" the returns, it contemplates any kind of return, so long as it is fully filled up as to the number of votes of all the candidates, no matter if as so filled up, it is palpably illegal and unserviceable by this Court's own standards. Worse, the only alternative that the majority suggests in such a contingency is to disregard the defective return and count no votes for the precinct concerned. In good conscience, I find it extremely difficult to agree with such a view. I cannot admit that the existing electoral laws and the pertinent constitutional provisions are that bad. My legal knowledge and experience, humble as they are, revolt against the idea that "there is no law or jurisprudence" authorizing any alternative other than to disregard the returns here in question and count no votes — virtually hold there was no election, which only the electoral tribunals can do — in the 22 precincts here involved. That the present laws and constitution have left such an alleged void in the electoral scheme of this country is, to me, a conclusion that is impossible of acceptance. True, Section 163 specifically allows a judicial recount in cases of irreconcilable conflict between copies of the same returns and there is no other provision in the Revised Election Code authorizing such a recount, but who is advocating a judicial recount in the present case? It is clear to me that the fact that Section 163 sanctions a judicial recount in its premises, cannot be considered as indicative of any legislative intent to preclude the obligation of the inspectors to prepare another return in substitution of one found to be unserviceable by the Comelec. To start with, the preparation of an appropriate return in such a case does not necessarily entail a re-reading of the ballots. The truth is that in the actual working out of the electoral procedure, the inspectors do not prepare the returns on the basis directly of the ballots; the returns are filled up by reading the result found in the tally sheets. What is wrong then with making the inspectors prepare a new return on the basis of tally sheets? The answer of the majority is that the tally sheets may be as defective as the returns. Definitely there is no evidence, much less proof to that effect. Why must We decide this case on the basis of conjectures? Is it not Our own ruling that every effort must be strained to determine the true result of the count of votes? Why does not the majority want to strain efforts further in this case? In the event the tally sheets in the precincts here in question turn out to be as faulty as the returns, what would be wrong anyway with requiring the inspectors to re-read the ballots? Now, if the integrity of the ballots themselves happen to be questionable, then, perhaps, there would be no other recourse but leave out the corresponding precinct in the canvass. In such a case, I would say that even if the wrong candidate is proclaimed, it would not matter very much because no one is expected to do something that is physically and legally impossible. In conclusion on the point under discussion, I submit that the absence of any provision expressly authorizing a recount of votes when all the copies of the returns are unserviceable is simply explained by the fact that such a remedy is too obviously implicit in the existing laws to require further specific legislation.
It is further argued that in the Lagumbay case, after holding that the fifty returns in question were fabricated, this Court ruled that "fraud or no fraud, the verdict in these fifty precincts (therein involved), may ultimately be ascertained before the Senate Electoral Tribunal ... All we hold now is that ... the returns ... do not reflect true and valid reports of regular voting. The contrary may be shown ... in the corresponding election protest," hence, the same procedure should be followed here by leaving the results in the 22 precincts herein involved to the House Electoral Tribunal in an appropriate election protest. I have already explained that the supposed ruling thus referred to must have been due to the fact that at the time the decision was rendered, the Lagumbay was already within the orbit of the Senate Electoral Tribunal's jurisdiction inasmuch as at that time, Senator Lagumbay had already been proclaimed as a consequence of the minute-without-prejudice resolution of this Court, taken the oath and assumed office. Be that as it may, the above-quoted statements of this Court in the Lagumbay decision had no specific reference to the argument that there should be a recount.
Besides, it is in the very nature of the electoral process that the same matters affecting the election returns may be decided or passed upon at different stages, from different points of view, for different purposes and by different bodies or offices. In the ordinary scheme of this electoral process there are three stages in determining the legitimate result of an election, namely, first, the counting of the votes by the inspectors; second, the canvassing of the returns by the board of canvassers and lastly, in the event of controversy as to the legality and regularity of the elections, the electoral protest. The proper preparation of the returns is undertaken by the board of inspectors and only said board has the power to decide questions regarding what the returns should contain, subject to control of the Comelec and ultimately of this Court, but whatever be the rulings of the board, they have no bearing on the final determination of the true and legal result of the election, said rulings being good only for purposes of preparing the returns for submission to the corresponding officers so that the same may be submitted, in turn, to the board of canvassers. Likewise, as to the canvass, it is the board of canvassers, subject again to supervision and control of the Comelec and the final appellate authority of this Court, that has the exclusive authority to pass on the authenticity of the returns, but part and parcel of the duties of the said board is the obligation to see to it that all the corresponding returns are before it; not before then does its power to canvass exist. After the canvass and proclamation have been legally made, the board of canvassers' and the Comelec's functions in regard to canvassing become functus oficio and the jurisdiction of the electoral tribunal ensues, only then but not earlier. Again, all rulings of the Board of Canvasser and the Comelec and this Court at this stage are binding only in so far as the canvass and the proclamation are concerned and have no compulsive bearing on the issue of overall legality of the election which is left to be determined, in case there is a protest, by the electoral tribunals. Thus, the constitutional conferment upon the House Electoral Tribunal of exclusive jurisdiction as "sole judge of all contests relating to the election, returns and qualifications of the (irrespective) members" of the House of Representatives, should not preclude the board of canvassers and the Comelec from doing and performing all their duties to see to it that a complete and regular canvass is made. In other words, in the scheme of the electoral process the boards of inspectors, the boards of canvassers and the Comelec as well as the electoral tribunals have their own designated times to deal even on the same matter without any conflict of jurisdiction, each deciding and resolving the matter for specific and distinct purposes.
In the case at bar, there is no issue of legality or irregularity of the voting nor any question of appreciation of ballots. Nobody is claiming that there was no election or that the election in the 22 precincts in question should be annulled. The sole issue involved refers to the contents of the returns for purposes of canvassing — that is, whether or not they are authentic and can be given prima facie value. This question is not likely to be taken up in any ensuing election contest, since there the issue will go beyond the returns to the ballots or votes themselves. Clearly, this matter, by its very nature, belongs to the jurisdiction of the Comelec. There is no reason to waive that jurisdiction. It is insisted, however, that, after all, the ballots may be duly counted by the electoral tribunal and the true results known thereafter. Would that not be too late for the candidate who should have been proclaimed, if the counting were made earlier?
It is suggested that adopting the rule that when there is a manufactured return, the votes in the corresponding precinct should be disregarded would be giving the one who caused the illegality his just desserts. At first glance, this argument does appear to administer poetic justice, but on deeper reflection, one will realize that, as earlier explained, the "manufacturing" may also be done by the other party who would benefit by the complete disregard of the votes in the precinct and not necessarily by the candidate or party that appears favored on the face of the return. Under these circumstances, there is indeed no substitute for what is most normal, logical and legal, which is none other than to have the inspectors prepare a new return, on the basis of the tally sheet, if found to be regular, otherwise, on a recount of the ballots, unless the latter are themselves unserviceable.
Fear is expressed that if the Comelec is to be recognized to have the power suggested by petitioner, the likelihood is that many proclamations will be held up because of the necessity of recounting the votes in many precincts in which the returns are unserviceable and thus, greater injury will be caused to public interest by the failure of many elective officials to assume office at the inception of their terms. I believe that such apprehension has very little reason for being. The very fact alone that all concerned are precisely being made aware by Our decisions that this Court will never countenance the unnecessary delay of a proclamation and the unwarranted disregard of the results of the election in any precinct and, further, that We will not hesitate to order the prosecution of the guilty parties, will have the effect of discouraging further ill-conceived schemes to defeat the true vote of the people. Moreover, the proper procedure is really more simple than it is imagined to be. After a return is declared unserviceable for any reason in the law, all that has to be done is for the board of inspectors of the corresponding precinct to meet and prepare a new return, on the basis, as already stated, of either the tally sheet, if it appears to be regular, otherwise, the ballots themselves, a procedure which need not take more than a day or two. Surely, this slight delay is more than made up for by the clear advantages I have already discussed. Given Comelec officials who are properly imbued with the necessary loyalty to truth, the laws, the constitution and the country, and with this Court clarifying every doubt in the statutes and past jurisprudence, as it should have done here, to the end that the electoral process may be as simple and as fool-proof as human genius can make it within the boundaries laid down by the laws and the Constitution, we can be certain that, even if our burden of work be heavier for sometime or some proclamations may suffer a little delay, earlier is this country going to have more honest and free elections. Withal, even granting that the imagined fear may indeed materialize, I cannot compromise with the pose that this Court must adopt the interpretation that would avoid it, even if it is clear that a construction more in consonance with the intent and spirit of the law is undisputably feasible. We all know that if ever there should be more instances hereafter of unserviceable returns that would necessitate the consequence I advocate, it will be because attempts may be made precisely to defeat the ends We intend to achieve by adopting the interpretation I propose. Is it proper for Us to hold that our construction should yield such evil design?
The ideal to approach is that every man's vote must count for all purposes for which it is cast, principally, the proclamation and the final outcome of the election; hence, any ruling to the effect that the votes in any precinct should not be counted, even if only for the purposes of the canvass and proclamation, when it is obvious the at the alternative to avoid it is still legally open, should be farthest from the mind of this Court, for the simple reason that it will cause irreparable injury to the popular will. To the great comfort of our people, the trend of Our decisions in electoral cases has thrown electoral malefactors into confusion and given the citizenry a well-grounded hope that under the able supervision of the Comelec, proclamations made by boards of canvassers are presently as proximate as human capability can make it to the best determined presumptive results of the elections. It is truly unfortunate and regretable, that after this Court has advanced so far, the majority cannot now see its way onward, to the great impairment, I believe, of the cause of clean and honest elections and the consequent disenchantment, let Us hope not, of those who only recently had reason to feel that this Court had already traced in Lagumbay, Pacis, Mutuc, Tiglao, and all its other decisions of similar tendencies, an irreversible course towards the most expeditious determination of the question of who should be proclaimed as winner in an election, thereby eliminating as much as possible the chances of error and even mischief in this respect.
ACCORDINGLY, I vote to reverse the two Comelec resolutions now before Us in all respects that they are inconsistent with the foregoing opinion.
Footnotes
1 In Tagoranao vs. Comelec, only one precinct was involved.
2 This is the first Pacis case: Pacis vs. Comelec, et al., L-28455, February 10, 1968, 22 SCRA 539; the second is Pacis vs. Comelec, et al., L-29026, September 28, 1968, 25 SCRA 377.
3 Mutuc, et al. vs. Comelec, et al., L-28517, February 21, 1968, 22 SCRA 662.
4 Tiglao vs. Comelec, L-31566, February 18, 1970.
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