G.R. No. L-31566, February 29, 1972,
♦ Decision,
Teehankee, [J]
♦ Concurring Opinion,
Fernando, [J]
♦ Concurring Opinion,
Barredo, [J]
♦ Dissenting Opinion,
Zaldivar, [J]
EN BANC
G.R. No. L-31566 February 29, 1972
ROGELIO O. TIGLAO, petitioner,
vs.
THE COMMISSION ON ELECTIONS, CORNELIO SANGA and BOARD OF CANVASSERS OF PAMPANGA, respondents.
G.R. No. L-31847 February 29, 1972
ROGELIO O. TIGLAO, petitioner,
vs.
THE COMMISSION ON ELECTIONS, CORNELIO SANGA and BOARD OF CANVASSERS OF PAMPANGA, respondents.
G.R. No. L-33105 February 29, 1972
BOARD OF INSPECTORS OF PRECINCT NO. 20, SAN LUIS, PAMPANGA; ROSARIO DAKIS, SEBASTIAN C. PALMA, ALEJANDRO MAUN and PEDRO TOLENTINO, petitioners,
vs.
HON. MALCOLM G. SARMIENTO, Judge of the Court of First Instance of Pampanga, ROGELIO O. TIGLAO and CORNELIO C. SANGA respondents.
Suarez, Amor, Pimentel and Mendoza for Rogelio O. Tiglao.
Jesus G. Barrera, Hermogenes Datuin, Jr., Lorenzo Navarro and Virgilio Sanchez for Cornelio C. Sanga.
Ramon Barrios for Commission on Elections.
Separate Opinions
FERNANDO, J., concurring:
Joins this opinion as well as that of Justice Barredo insofar as they are predicated on the finality of the opinion of this Court in Tiglao vs. Commission on Elections, L-31566, February 18, 1970, 31 SCRA 719.
Separate Opinions
BARREDO, J., concurring:
The detailed and logical discussion made by Mr. Justice Teehankee of the varied aspects of these cases amply justifies the resolution in the main opinion of the issues discussed and rediscussed by the parties in the volumes of memoranda and manifestations they have filed within the two years that these cases have been bouncing back and forth to this Court since soon after the elections of 1969. It is indeed a faithful and comprehensive articulation of the consensus among the members of the Court, except as to the matters relative to the election return for Precinct 6 of San Simon, regarding which some of our colleagues do not feel inclined to agree with the holding that the decision of Judge Sarmiento ordering that 75 votes be credited to respondent Sanga cannot be sanctioned by this Court because the judge proceeded to recount the votes in the ballot box of said precinct notwithstanding that the condition precedent set by (the Court) in its resolution of August 31, 1970 for conducting a recount in correction proceedings, viz., a previous satisfactory showing of the integrity of the ballot box and of its contents has been duly preserved, has not been met and fulfilled.
The only purpose, therefore, of this separate opinion is to express my own individual views regarding this particular controversial return for Precinct 6 of San Simon, for I am convinced that all the circumstances revealed in the record considered, it is best to maintain the original decision of this Court ordering that "no vote" be credited to respondent Sanga in this precinct.
In the later course of Our deliberations, I remember having pointed out that this particular return was first brought to this Court precisely because it was tainted with the congenital infirmity consisting of the uninitiated alterations of the votes of respondent Sanga from 0 to 75 in all the examined copies thereof, including the copy retrieved by Comelec after opening of the ballot box, and that it was for this very reason that in Our unanimous decision of February 18, 1970 penned by Mr. Justice Sanchez, We ruled in no uncertain terms that such alteration "was unauthorized by, and contrary to, the provisions of Section 154 of the Election Code," and that "the inspectors could not plead ignorance to this, on the assumption that they really discovered the "mistake". Such a stratagem, We are not prepared to legitimize. For, the dispiriting lesson in past elections is that the election returns are tampered to favor a candidate. ... Tampering, falsification, spoliation of returns or making spurious returns must have to be discouraged." More explicitly, Mr. Justice Sanchez held for the Court that "The tally sheet retrieved from the ballot box is no help because it is not now before Us, aside from the fact that averment is made that it is unsigned," as, in fact, when said tally sheet was ultimately examined, it did show that the Chairman of the board of inspectors and the poll clerk had not signed it. Accordingly, I explained that as far as I am concerned, under these circumstances, the question of whether or not Sanga actually got 75 votes in this precinct is at the least controversial and any speculation that he did get them could not rest on firm legal ground, and since the only fact clear to Us then was that the figures in the impugned return had been unauthorizedly altered, indicating possibility, as suggested by Justice Sanchez, of tampering, I saw no reason why Our decision that "respondent Commission on Elections is hereby directed to credit no vote for respondent Cornelio sanga in Precinct 6, San Simon" should be altered, considering particularly that it had already become final and executory.
True it is that respondent Sanga moved for the reconsideration of Our decision, insisting that the alteration in question be authorized, upon the ground that the same was made before the publication or announcement of the results in the precinct, but We denied said motion, albeit We additionally observed in Our denial resolution that the issue over the disputed 75 votes had by then become moot and academic in view of the results of the other correction proceedings which appeared to have given petitioner Tiglao a majority over respondent which could not be affected anymore by the outcome in Precinct 6. Be that as it may, what is important is that before Our decision became final and executory as far as this particular precinct was concerned, respondent, whether in his motion for reconsideration or in any other pleading, never asked for the alternative remedy that instead of Our ordering definitely that "no vote" be credited to him, he be allowed to seek judicial authority to have the return in question corrected, but tenaciously insisted, instead, that the said return, as is, be given legal effect.
To my mind, it cannot be denied that these alternatives were well within the compass of the subject matter and cause of action in that proceeding, and consequently, since respondent wanted it resolved only his way, it is elementary that any proceeding subsequent to the finality of Our decision for the purpose of giving him the chance to change his choice must be considered as already barred by res adjudicata. It should be borne in mind that the proceeding involved is supposed to be a summary one in order to expedite the proclamation of the ostensible winner in the election, and it is inconsistent with its very nature, to allow any of the parties to engage in a hit or miss procedure that would enable him to go back to the court after his chosen remedy of insisting on the acceptance of the return as is has been terminated adversely to him in a decision which has already become final.
From this point of view, and overlooking already the fact that for unexplained reasons, the petition for judicial authority to correct which was subsequently filed with the Court of First Instance of Pampanga by the board of inspectors was thus filed without leave of nor notice to this Court or to the Comelec and, as a matter of fact, its result was never earlier brought to Our attention nor to that of the Comelec nor even to that of the board of canvassers, which attitude of silence has meritedly gained emphatic stricture in the main opinion of Mr. Justice Teehankee, albeit, it could be that respondent was just keeping the outcome of said proceedings in reserve in order that he might be able to utilize it should the other proceedings result in a margin in favor of petitioner Tiglao that would make those supposed 75 votes in Precinct 6 decisive, I feel that, when, upon Our discovering that such a move had been taken by respondent, which was only when the Comelec came to Us to inquire as to how it would deal with the "correction" of the returns for Precinct 6 ordered by Judge Sarmiento on April 10, 1970, We took official cognizance of said "correction" and ordered its being set aside, with instructions to remand the matter to the lower court for further proceedings, Our action was not altogether in accordance with the prevailing rules, if only because by it, We virtually set aside a decision already final and executory, with no purpose than to allow respondent to resort to a remedy which as a matter of law and procedure, We would ordinarily consider as already foreclosed because he could and ought to have adopted it before such finality, considering that the matter therein involved as already explained, was well within the scope of the subject matter of Our decision.
Of course, I am aware that We opted nevertheless to bend a little backward in Our desire to take a deeper look into the case, which We felt was a more pragmatic if not exactly legal orthodox approach, namely, to consider the correction proceeding void, along the line of Our resolution of similar petitions for correction in the returns for the other precincts and order, under the same conditions, the account of the votes, (Resolution of August 31, 1970) Our idea being to find out once and for all what the ballots themselves would show and thus eliminate all debates, conjectures and speculations. To me Our action was at best in the nature of an interlocutory step which, if further developments and the interests of justice would require, We could utilize to make our final decision. And so, it must be emphatically pointed out in this connection, that in thus virtually reopening the case and remanding it to Judge Sarmiento, We explicitly imposed the same conditions for the new correction proceedings to be conducted by him that We set down as regards the other precincts. We laid down these conditions precisely because of Our firm determination that even as a pragmatic approach is naturally more practical, expedient and closest to being conclusive, at the same time We want to make it sure that the proceeding is insulated as much as possible from any tinge of unfairness, by requiring that all the interested parties be duly notified and given an opportunity to be heard; that it is removed further from speculative features that attended the old procedure, by making it indispensable that the presiding judge should see personally enough copies of the return sought to be corrected and thereby better have a more factual and comprehensive basis for his resolution; and that it be avoided, on the other hand, that the courts fall into the trap, commonly employed by unscrupulous parties, of stuffing the ballot box with ballots adjusted to the contents of the tampered return, by directing that, whenever the evidence aliunde leaves room for doubt as to the accuracy of the actual number of votes received by the candidates concerned, the court order the opening of the ballot box for the sole purpose of mechanically counting the votes of the contending candidates as in a proceeding for judicial recount, i.e., without appreciating or determining the legality or illegality of any of the ballots or votes. Very importantly, in connection with this possible recount, We made it very clear that consistently with the procedure in judicial recounts, before proceeding to any counting of the votes, the court must satisfy itself first, as a condition sine qua non, that the integrity of the ballot box has been preserved. As Justice Teehankee has pointed out, as a matter of fact, both the Comelec and Congress have seen the wisdom of Our ruling, for upon Comelec's recommendation, Congress incorporated the same virtually verbatim in the Election Code of 1971. Indeed, unless such integrity is assured, what good would it do to look into the contents of the ballot box? When there is reason to believe that the ballot box could have been tampered with, what guarantee can there be that the ballots found therein, despite the fact that they may appear clear and regular on their faces, have not been accordingly adjusted?
It is argued that in Our resolution of August 31, 1970, We referred to the integrity not only of the ballot box but also of its contents, in the latter, principally the ballots, but precisely, that only means that the satisfaction only as to the integrity of either is not enough, for everyone familiar with the mysterious ways how election frauds are committed knows, the apparent integrity of the ballot box is no guarantee of the integrity of the ballots and, therefore, logic ordains that the integrity of the ballots should be important only if the integrity of the ballot box is shown to have been duly preserved, for in the vice-versa situation, that is, where the condition of the ballot box emits suspicion of possibility that it has been opened, the appearance of integrity of the ballots would naturally be also suspect and so, to avoid further delay in making a proclamation, since, as already observed, the experience of this Court in election cases tells Us that the apparently clean and regular appearance of ballots is often deceiving and, on the other hand, the proof of their integrity is rather a cumbersome process involving the reception of oral, documentary and expert evidence, the better policy in such a case should be to leave the determination of the true and legal result of the elections in the precinct concerned to the more fulsome and comprehensive procedure of an electoral protest.
As I see it then, this is exactly the problem now before Us in this case: We ordered Judge Sarmiento to conduct correction proceedings relative to the return for Precinct 6 with express admonition that he should determine, as a prerequisite thereto, whether or not the integrity of the ballot box had been duly preserved; and the precise issue for our resolution is, whether or not Judge Sarmiento has complied with this instruction within the contemplation of Our resolution of August 31, 1970. To my mind, if We are convinced that Our instruction has not been so observed, it would be too much already for Us to again bend backward, virtually accommodating respondent once more and, rendering as nothing but empty rhetoric Our instruction, subverting thereby Our innovative ruling of August 31, 1970.
Anent the observation of some of Our colleagues who say that they have observed the condition of some of the ballots herein involved (not all of them) on the occasion when We ordered the opening of the ballot box for Us to see the envelop containing said ballots, the condition of which was the subject of dispute between the parties and, according to them, said ballots do not appear to have been tampered with, what I can say is that my understanding of Our ruling imposing the condition sine qua non that the court must first satisfy itself of the integrity of the ballot box before ordering its opening is that said ruling correspondingly precludes the examination of the ballots until after such condition precedent has been complied with, and, as a matter of fact, it was for this reason that I, for one, and perhaps the majority of the members of the Court did not examine said ballots. For my part, I am not satisfied that the integrity of the ballot box herein involved has been properly preserved and the contrary finding of Judge Sarmiento is not only plain error of judgment but a grave abuse of discretion. It can also be considered as an excess of jurisdiction, considering that he went ahead with the counting of the votes without complying with sufficient degree of carefulness and thoroughness with the instructions and conditions embodied in Our resolution of August 31, 1970.
The Election Code as well as the Comelec's instructions to the board of inspectors imperatively require that after the counting of the votes and the announcement of the results of the election to the people in and around the precinct, the ballot box must be sealed with three padlocks, apart from the corresponding self-locking metal seals securing the cover as well as the inner compartment for valid ballots. The specific identity of these padlocks and self-locking metal seals, by their make and serial numbers, are supposed to be duly recorded in the minutes of voting and other documents to be prepared by the board of inspectors. Accordingly, when this ballot box in question was opened upon orders of the Comelec on January 5, 1970, all of these details regarding the existence, proper closing or locking of these padlocks and seals should have been made of record, in order that the identifying details could be checked and reconciled with the central records of the Comelec and those of the provincial and municipal treasurers who are supposed to keep a record of them. It is truly unfortunate that in the case at bar, none of these details appear to have been taken note of by those who took part in that proceeding. Considering that the contents of the return in this precinct were being disputed by the parties there should have been utmost care in recording these details I have mentioned.
This sad state of things is even more deplorable because, as far as the records of this case show, no notes were taken of the Comelec proceedings of January 5, 1970, whereby it could have been determined whether or not the ballot box was duly closed and properly sealed and padlocked at the end of the proceedings held on that day. Consequently, all that is known now is that when the ballot box was taken to the Court of First Instance of Pampanga on April 10, 1970 for that "sub-rosa" correction proceeding of that date, to use the language of Mr. Justice Teehankee, it had only one padlock and did not have the usual self-locking metal seal inside, and as if to make matters worse, no one in the Comelec seemed to now the whereabouts of the key of the sole padlock. At least, that is what Atty. Jovito B. Barreras, the Comelec representative, of whom much still remains to be said anon, manifested in the court below and before Us when We required his appearance here.
Indeed, I consider it relevant to quote Atty. Barreras' testimonies on this point because they bother my conscience, making it difficult for me to have a definite picture of the exact truth as to what really happened in the court in Pampanga on April 10, 1970. According to the transcript of his testimony on that day, he testified thus:
ATTY. NAVARRO:
Q Are you the representative of the Comelec who was sent to bring the ballot box for Precinct 6 of San Simon, Pampanga; the Provincial Treasurer's copy of the election return for Precinct No. 6 of San Simon, Pampanga, as well as the Comelec copy of the said return, pursuant to the subpoena duces tecum issued by this Court?
A Yes, sir.
Q Do you have those documents and articles with you?
A I have here with me in my possession election return's copy for the Commission on Elections, the election return's copy for the Provincial Treasurer and the ballot box for Precinct No. 6 of San Simon, Pampanga.
Q Do you have the keys to that ballot box?
A I do not have the keys, but we cannot find it now, because it has been misplaced in the office, but I am ordered and authorized by the Commission to have the locked padlock, as well as the metal seals to be broken in open court..
Q What is the authority?
A That is the verbal authority from our Chief, and that has been the standard procedure in operation when we don't have the keys.
Q And you have the equipments to brake (sic) forcibly the lock?
A A nail hammer." (pp. 4-6, T.S.N. Election Case No. 3697, April 10, 1970)
Towards the end of this testimony, Atty. Lorenzo P. Navarro, counsel for respondent, and the court made the following manifestation:
ATTY. NAVARRO:
May we make of record that the ballot box has only one (1) padlock which the witness said the key is missing, and that he was authorized by the Comelec to forcibly open the same by means of a hammer.
COURT:
Make of record that the witness is now hammering the padlock to forcibly open the ballot box.
WITNESS:
The outer cover is sealed with sealed locking metal No. 009375, (which is now being broken by the witness.).
COURT:
Make of record that the witness was able to open the ballot box.
WITNESS:
There is no sealed locking metal placed inside the door of the ballot box. (pp. 11-12, T. S. N. Election Case No. 3697, April 10, 1970.)
As against this testimony, at the hearing in the Comelec of June 22, 1971, Atty. Barreras gave the following seemingly contrary declarations:
ATTY. BARRERAS:
If your Honor please, be it remembered that during the hearing at San Fernando, Pampanga, on April 10, 1970, we forced open all the padlocks before the Honorable Court and the padlocks to this ballot box were in Manila.
COURT:
Why did we force open the padlocks during the bearing in San Fernando, Pampanga? .
ATTY. BARRERAS:
Because the keys were not produced by the respective custodians of the keys to the padlocks at the time the case was heard and that is the standard operating procedure in the Comelec in order not to delay the proceedings to break the padlocks.
COURT:
And these padlocks now found in the ballot box were placed where? .
ATTY. BARRERAS:
In the Commission on Election and these were brought here from San Fernando, Pampanga. (pp. 11-12, T.S.N. Election Case No. 3697, June 22, 1971.)
It would appear then that, according to the recollection of Judge Sarmiento and Atty. Barreras as of June 22, 1971. on April 10, 1970 apparently there was more than one padlock and the reason why they were forcibly opened was because the respective Custodians of the corresponding keys did not produce them, whereas, per the record of the proceedings of April 10, 1970, the number of padlocks and the reason for the force used upon it were different.
The next significant development took place on June 14, 1971, more than fourteen (14) months after the hearing of April 10, 1970 in San Fernando. On this date first mentioned, it was discovered that the ballot box of Precinct 6 in the custody of the Comelec was without a single padlock, "ever since same was brought before it by (sic) Judge Sarmiento by the representatives of the Commission on Elections — sometime in April, 1970." (Annex C of the Supplementary Opposition of petitioner dated July 24, 1971.) What are specially notable in this exhibit are that (1) whereas it indicates the serial numbers of the padlocks which were then and there supposed to have been placed to secure the ballot box, SN 138, SN 083 and SN 017, nothing is mentioned of any self-locking metal seal having been seen or placed whether outside or inside; (2) that the ballot box was not "kept inside (therefore, outside) of the vault of the (Comelec) for sake keeping"; and (3) that, relatedly, during the proceedings held on June 22, 1971, the record does not show if a verification of the identity of the padlocks and whatever self-locking metal seal there was then, thru their serial numbers was made, and yet seemingly careful note was made by the same Atty. Barreras that the ballot box was sealed with self-locking metal seals Nos. 009407 inside and No. 009408 outside. In this connection, anent the observation that petitioner Tiglao's representative made no protest as to the lack of integrity of the ballot box on that occasion, suffice it to say that, precisely, the request to have the ballot box thus properly padlocked was in itself an emphatic protest, albeit, in a sense, the remedy requested might have been already too late because "the horses had already gone when the barn was closed."
Again, in the same hearing of June 22, 1971, it was the same Atty. Barreras who produced all the keys with which all three padlocks were opened without any explanation of any kind as to how he happened to be in the possession of all of them, when for security reasons, they should have been kept separately by different persons. To be recalled, at this point, must be the fact that it was this same Atty. Barreras who took this box to Pampanga on April 10, 1970, forcibly opened the same in court and returned it later to the Comelec without any padlock and outside of the vault until June 14, 1971.
I am not overlooking the fact that, according to Atty. Barreras, (and nobody else because the record of the hearing of April 10, 1970 contains nothing on the matter), the ballot box was sealed with self-locking metal seal No. 71046 on the outside right there in the courtroom of Judge Sarmiento. Indeed, it can be said that this is the only possible proof respondent can possibly cite of the integrity of the ballot box since April 10, 1970, proof of such integrity before that being most unsatisfactory as already demonstrated earlier. But again, I cannot help having serious doubts regarding this self-locking metal seal. No official record has been presented, despite the requirement of this Court that it be produced, showing where it came from, how Atty. Barreras came to have it and what official receipts there are covering the same. Sight must not be lost of the fact that those details are of extreme importance, since it is only by these records that possible tampering with and substitution of this kind of seals can be detected. These seals have been precisely devised in order to augment the security of the padlocks, considering that once they are broken they can no longer be put back, hence the importance of their serial numbers and their sources and the corresponding authority of their holders being duly recorded to the last detail.
The purported receipts, Annexes 4 and 4-a, of respondent Sanga's reply to August 9, 1971, which Atty. Barreras and one Joaquin Isaac, Jr., alleged armorian of the Comelec, issued to each other in one single sheet of paper does not impress me at all. Of course, it appears to be proof of transfer of the custody of the ballot box in question from Isaac to Barreras in the morning of April 10, 1971 and the return of said custody by Barreras to Isaac in the afternoon of the same day, but when it is considered that Isaac allegedly went anyway with Barreras to the court in Pampanga, although there is nothing in the court's records of that day's proceedings to that effect, it is beyond comprehension why Isaac had to part officially or otherwise with the custody of the ballot box and why Barreras still had to take custody thereof. When it is further considered that if Isaac had mission papers for the purpose, proof of which has not again been submitted despite this Court's requirement, how can it be explained that Barreras had to issue receipt to Isaac who was supposedly with him all the time? Besides, it strikes me as rather too unusual to be readily be believable that, per this exhibit, Barreras took delivery of the ballot box from Isaac at exactly 6:00 o'clock in the morning of April 10, so the receipt states, and returned the same day at exactly 6:00 o'clock in the afternoon of the same day, and Atty. Apostol, an official of the Comelec happened to be in the premises to note the same also on April 10."1
But what to me is most revealing is that the receipt sign by Isaac specifies not only the serial number of the self-locking metal seal outside of the box as 71046 but also that of the seal inside as D-70913. How did Isaac know the serial number of the inside seal? Did Barreras tell him? Respecting the contrary opinion of some members of the Court, I consider this receipt as an absurd imposition upon the good faith of this Court. I feel very strongly that it bears badges of an antedated fabrication and falsehood. To give credence to it is to dignify a brazen attempt to misrepresent facts before this Court. In conscience, I cannot give any value to this receipt. If I were to be asked why it was prepared, I would readily say that this is the only link that could serve as some sort of res gestae evidence that when Barreras returned from Pampanga on April 10, 1971, the ballot box was already sealed outside with a self-locking metal seal, even if it cannot be proof of what might have happened between Pampanga and Manila, there being nothing in the records of the court on that day that it was duly sealed in the presence of the court then, although, of course, something of it appears in the records of the proceedings already of June 22, 1971, but a cursory reading of which, to say the least, is to my mind, the best proof of how Barreras has really the genius to give his actuations the appearance of regularity, dubious as they are. It is a cause for wonderment that Judge Sarmiento seemingly just took for granted everything Barreras manifested and never made of record his own recollection of what happened before him then.
Moreover, it intrigues me no end why of the three persons who allegedly went to Pampanga, only Mr. Santos Barbosa the driver had a written directive of the Executive Officer of the Comelec, Atty. Emilio J. Aguila.ℒαwρhi৷ Indeed, Barreras claimed that his going to Pampanga was purely coincidental, because when the Comelec received the subpoena for the hearing of April 10, 1970, it was already past 4:00 o'clock in the afternoon of April 8 and practically all the lawyers of the Comelec had already left and, of all people, only Barreras happened to have been delayed in leaving the office, so there was no other one to whom the subpoena could be referred for compliance. That is why his mission order was no more than a handwritten marginal note of Atty. Apostol saying, "Atty. Barreras, please comply." But if Atty. Aguila was able to prepare a formal typewritten mission order for Santos, why not for Barreras and Isaac?
It may not be amiss to state, at this juncture, that I was the last member of the Court to give my assent to the innovative procedure set down in Our resolution of Aug. 31, 1970. My hesitation was, as I explained to the Court, due mainly to the fact that as a practitioner handling election cases before this Court for years and years, I used to be invariably rebuffed with the ruling that pre-proclamation proceedings are supposed to be summary and that doubts about the real outcome of the election may after all be solved in an electoral protest and that the opening of ballot boxes is a serious matter which may not be resorted except in very extraordinary cases. Luckily, in the Sambo vs. Chiongbian case, despite the fact that the court had already ordered the opening of the box and recounted the ballots, when I called the attention of the court to the fact that the integrity of the ballot box did not look convincing, Judge Ceniza set aside the recount and ruled that under the circumstances, the recount was unauthorized. Happily, this Court gave its stamp of approval to Judge Ceniza's resolution I remember distinctly that in that case, Congressman Chiongbian had already taken the oath by virtue of the premature proclamation by the provincial board of canvasser but still he was not able to assume any seat in Congress. Here in the case at bar, unlike in the Sambo case, We priorly and explicitly admonished the lower court to satisfy itself first that the integrity of the ballot box has been preserved before proceeding to a recount of the votes. I have already explained at length the circumstances why I feel very strongly that Judge Sarmiento's inquiry into this condition precedent leaves much to be desired. And if in addition to the above discussion, it is taken into account that on December 14, 1969, while Barreras was having under his charge, as Comelec representative, the dispute between petitioner Tiglao and respondent Sanga regarding who of them should be proclaimed as the duly elected Representative of the second district of Pampanga, Barreras, under peculiar circumstances, according to the record, became the compadre of respondent Sanga; in other words, Sanga became the god-father of his son, how can Barreras' representations be given weight as evidence of the regularity of the preservation and safekeeping of the ballot box and ballots in question when, on the contrary, the circumstances I have discussed would rather destroy the usual presumption of regularity accorded to the acts of a public official? And withal, I have read carefully Barreras testimonies, affidavits and manifestations and I heard and saw him make confusing, inconsistent and half-true statements when he appeared during the hearing of September 30, 1971, in this Court, and, indeed, I would consider myself very naive, if I were to give faith and credit to the representations of this pivotal witness which happen to be the only thin threads on which a resolution in favor of respondent Sanga in this case could hang.
Indeed, what I personally observed during the proceedings had in this Court on September 30, 1971 has practically confirmed my suspicions about what could have been done with the contents of the ballot box in question. The findings of Judge Sarmiento on the matter not withstanding, and having seen the condition of the envelope containing the valid ballots which was the subject of controversy between the parties, I must say that I am not ready to believe the explanation that the cause of the unusual condition of said envelope was the number of ballots that had to be accommodated therein, if only because the said envelope is of the standard size furnished by the Comelec to all precincts and necessarily the same must be suitable for the intended purpose, as otherwise all similar envelopes for all the other precincts throughout the country would not be as secure as they must be. At this juncture, I reiterate that the condition of the ballots themselves cannot be conclusive, since none of us has seen all of them anyway, and if We are to order their re-examination at this late stage, these cases will never end, for, in equity at least, We would have to also accede to Tiglao's own petitions as to other precincts, the circumstances of which cannot be in principle different from the subject of Sanga's petitions.
Finally, I would like to emphasize that the hearing held on April 10, 1970 was ex parte. The record reveals that Judge Sarmiento was properly informed of the circumstances under which service was attempted to be made upon Tiglao's counsel, Atty. Mendoza,2 and considering that April 9 was a public holiday, I find Judge Sarmiento's resolution proceed with the hearing, under the circumstances, without Tiglao being represented therein rather hasty. Besides, is to be noticed that in that hearing, it was not the Chairman of the board of inspectors who testified but only the poll clerk who, naturally, strictly speaking, does not exactly come up to the category of being the best evidence the matter was susceptible of.
By and large, since We must put an end to these cases now, for the sake of giving the people of the second district of Pampanga a chance to be represented in the last two remaining regular sessions of Congress, the foregoing considerations compel me in conscience to concur in the vote that Our decision of February 18, 1970, ordering that vote be credited to respondent Sanga in Precinct 6 of San Simon, Pampanga, instead of the 75 votes for him which Judge Sarmiento claims to have found in the ballot box for said precinct, stand, not to mention my conviction that as to Precinct 20 of San Luis, Pampanga, Judge Sarmiento's holding that only 9 votes instead of 49 votes should be credited to petitioner Tiglao is unwarranted by many of the facts found by him and the applicable law.
Footnotes
1 Strangely, the original of this receipt appears to have been misplaced. I have never seen it. The Comelec certifies it was filed with our docket; our Clerk of Court certifies it is not with Us. What is in the record are simple copies thereof only, including one in the original rollo, which is surprising, because if the original were submitted with the compliance of Comelec, no simple copy is needed to be attached to said compliance.
2 The service was not made by the regular Sheriff of Court but, it seems, by someone connected with respondent counsel or respondent himself. When service in the office could not be made, perhaps because it was a holiday on April 9, the server tried to make the service on Atty. Mendoza late in the afternoon, and he was then informed that Atty. Mendoza was in Baguio to attend to incidents of these cases precisely and there would be no more opportunity for him to be notified and be present at the hearing on April 10.
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