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
ZALDIVAR, J., dissenting:
I regret that I cannot agree with the view, expressed in the main opinion and in the concurring opinion, prepared respectively by my worthy colleagues, Mr. Justice Teehankee and Mr. Justice Barredo, that respondent Cornelio Sanga should not be credited with seventy five (75) votes in Precinct 6 of San Simon, Pampanga.
It can be gathered from a reading of the main opinion, and of the concurring opinion, that the question of whether or not to credit respondent Sanga with 75 votes is the decisive point in the present cases. If respondent Sanga is credited with 75 votes in Precinct 6 of San Simon he would obtain a margin of 60 votes over petitioner Rogelio Tiglao. On the other hand, if respondent Sanga is not credited with the 75 votes, petitioner Tiglao would have a margin over him of 15 votes.
It is my view that an objective appraisal of the circumstances and the evidence extant in the record of these cases cannot but make an open mind reach the finding, and the conclusion, that respondent Sanga had really obtained 75 votes in Precinct 6 of San Simon and in accordance with the settled doctrines in election cases he should be credited with 75 votes and should be proclaimed the duly elected Representative for the second district of Pampanga in the elections of November 11, 1969. I earnestly invite attention to the facts and circumstances which I relate in the following paragraphs.
During the canvass by the provincial board of canvassers of Pampanga of the results of the elections for Representative in the second representative district of Pampanga in the elections of November 11, 1969 — which canvass began on December 7, 1969 — said canvassing board counted for respondent Sanga 75 votes as written in the provincial treasurer's copy of the election return for Precinct 6 of San Simon. Petitioner Tiglao objected to the use of said provincial treasurer's copy because it appeared thereon that opposite the name of Cornelio Sanga the words "seventy five" were superimposed over the word "zero" and the figures "75" were superimposed over the figure "0". Petitioner Tiglao contended that the election return was a tampered return and, as such, it should not be used in the canvass. This matter was subsequently brought to the Comelec for a ruling. The Comelec caused to be brought before it the Comelec copy and the municipal treasurer's copy of the election return of Precinct 6 of San Simon, and upon examination of the three copies — the Comelec copy, the provincial treasurer's copy and the municipal treasurer's copy — it was seen that in all these three copies the words "seventy five" were superimposed over the word "zero" and figures "75" were superimposed over the figure "0". It was noted, however, that the superimpositions appearing on the three copies were uniformly done, because the copies were prepared with the use of carbon paper — one was original and the other two were carbon (duplicate) copies. The Comelec ordered the opening of the ballot box of precinct 6 of San Simon in order to retrieve and examine the ballot box copy of the return. This was done on January 5, 1970. In its resolution of January 5, 1970 the Comelec said:
Considering that after examining the provincial treasurer's copy, the Comelec copy and the municipal treasurer's copy of returns of this precinct, it appeared that they contain the same alterations, the Commission resorted to the ballot boxes (sic) copy of said election return which was retrieved from the ballot box in open session in the presence of counsels of opposing parties and which ballot box copy was also found to contain the same alterations as those in the other three copies first examined. The tally sheet was resorted to but although it was clean, it did not bear the signatures of the Chairman and Poll Clerk. In view of these findings, the Commission therefore RESOLVED to reserved the ruling on this particular return and to refer the Comelec copy, the provincial treasurer's copy, the municipal treasurers copy and the ballot box copy of the election return of Precinct 6, San Simon, Pampanga, to the NBI for examination and determination of the true entries of votes for the candidates which appeared to have been altered.
The copies of the election return were accordingly submitted to the NBI for examination, and in the NBI report it is stated:
3. Opposite name "Sanga Cornelio"
In column "Total Votes Obtained (In Words)"— "Zero" is super-imposed with "Seventy" of "Seventy five".
In column "Total Votes Obtained (In Figures)" - "0"(Zero) is superimposed with "7" of "75"
The NBI expert who examined the copies of the election return, and who submitted the report to the Comelec, testified before the Comelec that the superimposition stated in the report was a possible correction and not a tampering of the election return.
The poll clerk of Precinct 6 of San Simon testified before the Comelec and declared that when the Chairman of the board of inspectors was preparing the election return she noted that opposite the name of candidate Sanga the chairman wrote the word "zero" and the figure "0"; that she called the attention of the chairman to his error and referred him to the tally sheet and to the tally board where it appeared that there were 75 tallies for Sanga; that the chairman recognized his mistake and he corrected his mistake by writing the word "Seventy five" over the already written word "zero" and the figures "75" over the already written figure "0"; that the corrections were made before the copies of the election return were signed by the members of the board of inspectors such that when all the members of the board of inspectors signed the election return the corrections or super-impositions made by the chairman were already on the face of the election return, but that by oversight they failed to initial those parts where the corrections or superimpositions were made. The poll clerk further testified that the corrections or super-impositions made by the chairman were done before the board of inspectors had announced the result of the elections in that precinct.1
In this connection the Comelec, in its resolution of January 14, 1970, stated: .
1. MISS FE ROMERO, Poll Clerk of Precinct 6, San Simon, Pampanga (the Chairman of said precinct failed to appear) who testified that the entries under the columns "Total Votes Obtained" in words and figures for congressional candidates Jose Fausto, Jr., and Cornelio Sanga in the provincial treasurer's copy of the election returns for Precinct 6, San Simon, Pampanga, were corrections made by the Chairman in her presence after referring to the Tally Board and Tally Sheet, which correction were not initialed by them due to oversight.
And so in its resolution of January 6, 1970 the Comelec, among others, ruled as follows:
5) To hold that with respect to Prec. No. 6, San Simon, the super-imposition appearing in the votes of SANGA are corrections made by the Board and not tampering and to sustain the action of the Board of Canvassers in its canvass of said return.
Petitioner Tiglao came up to this Court on a petition certiorari to review the rulings of the Comelec as embodied in its resolution of January 26, 19702 which, among others, sustained the action of the board of canvassers in including in its canvass the election return of Precinct 6 of San Simon. This Court in its decision, penned by Mr. Justice Conrado Sanchez, now retired, on February 19, 1970, among others, reversed the ruling of the Comelec regarding the election return of Precinct 6 of San Simon. In that decision this Court held that because the super-impositions or corrections appearing in the election return for precint 6 of San Simon were not initialed by the members of board of inspectors as required by law, that election return should not be included in the canvass of the results of elections for representative in the second representative district of Pampanga in the elections of November 11, 1969. In so holding this Court invoked the ruling in the case of Balindong vs. Commission on Elections, L-29610, March 28, 1969, 27 SCRA 657.3
On March 7, 1970 respondent Sanga filed a timely motion for reconsideration of the decision of February 18, 1970, especially referring to the ruling of this Court regarding the election return of Precinct 6 of San Simon, contending vigorously that the rulings laid down in the Balindong case were not applicable to the case of the election return of Precinct 6 of San Simon, because the facts and circumstances obtaining in the Balindong case were different from the facts and circumstances attending the election return of Precinct 6 of San Simon. In its resolution of March 19, 1970, this Court denied Sanga's motion for reconsideration, and in particular reference to Precinct 6 of San Simon this Court said:
In denying respondent Sanga's motion for reconsideration the Court deemed it unnecessary to pass upon the question therein raised that the alteration in the return for Precinct 6, San Simon crediting said respondent with 75 votes (instead of zero vote as originally written) and disauthorized in the Court's decision, was made "during the preparation of all copies of the returns and before the publication of the results in the polling place." This question has become moot, taking into consideration that the Pampanga Court of First Instance, in its Resolution dated March 10, 1970 (Annex "A", petitioner's supplemental motion), denied said respondent's motion for reconsideration of said Court's decision, whereby petitioner has been credited with 292 additional votes from the six precincts concerned, where the returns were judicially authorized to be corrected, which votes are sufficient to offset respondent's overall margin of 247 votes before the correction, and hence the disputed 75 votes (which are already included in said margin of 247 votes) would not affect the results of the election.
Right on March 19, 1970 respondent Sanga immediately filed an urgent motion for reconsideration of this Court's resolution of March 19, 1970. On March 20, 1970 this Court issued a resolution suspending the effectivity of its resolution of March 19, 1970 and required petitioner Tiglao to answer respondent Sanga's motion for reconsideration not later than 9:00 a.m. on March 23, 1970. On March 23, 1970, this Court issued a resolution denying respondent Sanga's motion for reconsideration of this Court's resolution of March 19, 1970 and lifted the suspension of the effectivity of said resolution of March 19, 1970 as ordered in its resolution of March 20, 1970. The resolution of this Court of March 23, 1970 had the effect of simply maintaining its ruling of March 19, 1970 that the question regarding the 75 votes in Precinct 6 of San Simon had already become moot because the Court of First Instance of Pampanga had ordered the correction of the election returns in six precincts of San Luis, which resulted in petitioner Tiglao's obtaining 292 additional votes that were enough to offset the original margin of 247 votes in favor of respondent Sanga, even without deducting the 75 votes of San Simon. This Court, in its resolution of March 23, 1970, did not resolve the points raised by respondent Sanga in his motion for reconsideration of March 7, 1970. This court ruled only that the motion for new trial failed by respondent Sanga in the proceedings for the correction of the election returns in six precincts of San Luis, in the Court of First Instance of Pampanga, had become moot, because the matters alleged in the motion for new trial had already been passed upon by said court, and the order of lower court granting the unanimous petitions of the boards of inspectors of those six precincts for the correction of election returns was unappealable, such that the summary proceeding had come to an end.4
On March 24, 1970 respondent Sanga filed another urgent motion for reconsideration calling the attention of the Court that the correction proceedings in the Court of First Instance of Pampanga involving the six precincts of Sa Luis (Precincts 9, 15, 16, 19, 20, 21) were not yet decided with finality, because immediately after he learned of the decision of the Court of First Instance of Pampanga ordering the correction (after proceedings which were held ex-parte) he filed a petition for intervention questioning the legality and the propriety of the proceedings upon the ground that he was not notified of the hearings and that the court had no jurisdiction or competence to entertain the petitions for correction because those petitions were filed more than two months after the election and after a tentative canvass had been conducted wherein he (respondent Sanga) was shown to have a plurality of 247 votes over Tiglao. Respondent Sanga alleged in his urgent motion for reconsideration (before this Court) that the Court of First Instance of Pampanga overruled his contention and after his motion for reconsideration was denied5 he, without waiving or abandoning his right to pursue his theory of lack of jurisdiction, filed a petition for retrial or reopening of the case, which petition for retrial was argued by his counsel on March 19, 1970 and counsel for Tiglao was given time until March 24, 1970 to answer in writing the oral argument of his (Sanga's) counsel; such that as of March 24, 1970 (the date of the filing of urgent motion for reconsideration before this Court and after this Court's resolution of March 23, 1970) the correction cases in the Court of First Instance of Pampanga had not yet been decided with finality.6 In the urgent motion for reconsideration it is also alleged that the order of correction of the Court of First Instance of Pampanga, which was still being questioned by respondent Sanga in the court below, brought about an anomalous situation, and so the corrected returns should not be used in the canvass, because "the returns as corrected would show that the total of the votes cast in favor of all the candidates for Congressman would far exceed the total number of voters who actually voted and even the total voters registered." The urgent motion for reconsideration before this Court) further alleges that "To allow the acceptance of these anomalies after the actual canvassing and after the results of the elections had become known, would open the flood-gates to losing candidates to defeat the canvassing by instigating election inspectors to belatedly file petitions for correction of election returns intended to add enough, votes in favor of losing candidates to offset the majority of the winning candidate." Respondent Sanga, in his urgent motion for reconsideration, also called attention to the fact that in the decision of this Court of February 18, 1970 the pendency in the Court of First Instance of Pampanga of the proceedings regarding the election precincts of San Luis should first be determined with finality before any canvass leading to the proclamation should be held. It is, therefore, prayed in said urgent motion for reconsideration that the resolution of this Court of March 23, 1970 be reconsidered and that the order of suspension of the Court's resolution of March 19, 1970 be revived "until the incidents in the Pampanga court shall have been decided with finality."7
Also on March 24, 1970, respondent Sanga filed a supplemental motion for reconsideration alleging specifically that the motion for new trial that he filed in the Court of First Instance of Pampanga in the correction cases was not pro forma, as declared by this Court in its resolution of March 23, 1970, because even petitioner Tiglao himself, in his opposition to his urgent motion for reconsideration in the court below stated that "the motion for retrial alleges ground not alleged in previous motion for reconsideration ...", and so contrary to what is stated in the resolution of this Court of March 23, 1970, the grounds alleged in respondent Sanga's motion for retrial were not fully consider by the Court of First Instance of Pampanga in its resolution of March 10, 1970.
On March 25, 1970 this Court issued a resolution suspending the effectivity of the resolution of March 23, 1970, and required petitioner Tiglao to answer the urgent motion for reconsideration and the supplemental motion for reconsideration of respondent Sanga, both dated March 24, 1970, no later than 9:30 a.m. on March 30, 1970.
On March 30, 1970 respondent Sanga filed a manifestation alleging, among others, that in the resolution of this Court of March 19, 1970, the matter regarding the 75 votes in Precinct 6 of San Simon was not definitely ruled upon, but that in view of the conflicting claims of both petitioner Tiglao and respondent Sanga in the correction cases in the Court of First Instance of Pampanga, the question regarding the 75 votes in Precinct 6 of San Simon had become decisive and a definite ruling on the points raised in the motion for reconsideration of March 7, 1970 regarding those 75 votes was imperative.ℒαwρhi৷ Respondent Sanga, therefore, reiterated the prayer contained in his motion for reconsideration of March 7, 1970, as repeated in his urgent motion for reconsideration of March 19, 1970, for the resolution on the merits of his first motion for reconsideration of the original decision of this Court of February 18, 1970 regarding those 75 votes in Precinct 6 of San Simon. Respondent Sanga also prayed that the order of this Court directing the Comelec to reconvene immediately the board of canvassers to proclaim the winning candidate be held in abeyance until the cases for correction pending in the Court of First Instance of Pampanga shall have been determined with finality as was ordered in this Court's decision of February 18, 1970. Respondent Sanga further prayed that should the resolution of this Court on the incident in question be adverse to him, the effects thereof be held in abeyance so he could have an opportunity to elevate by certiorari to this Court whatever final decision might be rendered by the Court of First Instance of Pampanga on the pending incidents therein which are relevant or material to the issue in these cases.8
On March 30, 1970 petitioner Tiglao filed a supplemental opposition to respondent Sanga's urgent motion for reconsideration and supplemental motion for reconsideration, both dated March 24, 1970, giving notice to this Court that on March 25, 1970 the Court of First Instance of Pampanga denied respondent Sanga's motion for retrial etc. in the correction cases in said court.9
On March 30, 1970 this Court issued a resolution denying respondent Sanga's urgent motion for reconsideration and supplemental motion for reconsideration, both dated March 24, 1970. This Court ordered that no further motion to hold in abeyance this Court's resolutions of March 19 and 23 would be entertained, and that the suspension of the effectivity of the Court's resolution of March 23, 1970 as stated in the resolution of March 25, was thereby lifted. The Court ordered the Comelec to immediately convene the board of canvassers of Pampanga with instructions to conclude its canvass and to proclaim forthwith the winning candidate.10
Let it be noted that in this Court's resolution of March 30, 1970 there is no definite ruling on the points raised by respondent Sanga in his motion for reconsideration (dated March 7, 1970) of this Court's decision of February 18, 1970. And yet, respondent Sanga, in his manifestation of March 30, 1970, specifically prayed that the points raised by him in said motion for reconsideration be definitely ruled upon. This Court's resolution of March 30, 1970 simply maintained the resolution of March 23, 1970 which in turn maintained the resolution of March 19, 1970. As I have adverted to, this Court's resolution of March 19, 1970 did not rule squarely on the allegation in respondent Sanga's motion for reconsideration of March 7, 1970 that the ruling in the Balindong case, which was relied upon by this Court in its decision of February 18, 1970 in ordering that no vote should be credited to Sanga in Precinct 6 of San Simon, is not applicable to the case of the election return of Precinct 6 of San Simon. This Court's resolution of March 30, 1970 simply had the effect of denying respondent Sanga's motions for reconsideration of March 19, 1970 and March 24, 1970 which prayed for the reconsideration of this Court's resolution of March 19, 1970 that in turn denied respondent Sanga's motion for reconsideration of March 7, 1970 — which sought the reconsideration of the decision of this Court of February 18, 1970. I repeat that this Court's resolution of March 19, 1970 denied respondent Sanga's motion for the reconsideration of the decision of February 18, 1970, by simply saying that the matter regarding the 75 votes for Sanga in Precinct 6 of San Simon had become moot because the result of the cases for correction of the returns in six precincts of San Simon showed that Tiglao obtained 292 additional votes — enough to offset the original lead of 247 votes credited by the board of canvassers to Sanga. I also repeat that this Court did not resolve the point raised by respondent Sanga that the ruling in Balindong was not applicable to the case of the 75 votes in question.
As I will hereinafter show, this Court in its resolution of August 31, 1970 had nullified all the correction proceedings in the Court of First Instance of Pampanga which gave those 292 additional votes to Tiglao. It follows that the basis of this Court's denial of the motion for reconsideration of respondent Sanga, dated March 7, 1970, was not correct because petitioner Tiglao was not legally and finally credited with the 292 additional votes. It also follows that as of March 30, 1970 the decision of this Court regarding the 75 votes in Precinct 6 of San Simon, had not yet become final, and it continued to be pending resolution, specially, as I will hereinafter show, because subsequent supervening incidents involving these 75 votes in Precinct 6 of San Simon had taken place, which incidents were acted upon by this Court, thereby indicating that this Court had not considered the matter regarding the 75 votes in Precinct 6 of San Simon as foreclosed and definitely settled by this Court's decision of February 18, 1970.
On March 31 and April 2, 1970, all the members of the boards of inspectors, in the six precincts of San Luis where the election returns were authorized to be corrected by the Court of First Instance of Pampanga, came to the Comelec and made the authorized corrections of the election return in their respective precincts. On April 6, 1970 the corrected returns were delivered to the board of canvassers so that they may be included in the canvass. In the proceedings before the board of canvassers respondent Sanga objected to the use of these corrected returns in the canvass upon the ground "that said returns on their face are mathematically improbable and were obviously manufactured as it clearly appears that the votes cast for the congressional candidates are very much in excess of the registered voters in the respective precinct."11 The Board of Canvassers referred the matter to the Comelec for resolution on April 6, 1970. In its resolution of April 7, 1970 the Comelec pointed out that in these six precincts the total votes for the congressional candidates exceed by 79 the number of registered voters, and exceed by 273 the number of votes actually cast. In ordering the board of canvassers not to include in the canvass these "corrected" returns the Comelec, in its resolution of April 7, 1970, said:
Settled is the rule that excess votes per se may not invalidate the election returns, for any plausible explanation may be accepted to sustain their validity in order not to outrightly disenfranchise voters. But where, as in this case, the excess votes were the result of judicial correction made one day after the Commission has promulgated its decision (Case No. RR-695), and the winner already known, based solely on sworn petitions of the corresponding boards of inspectors, and the returns as corrected contained excess votes materially affecting the result of the election, then the only explanation that could be derived therefrom that said boards had submitted false or inaccurate data to the Court.
x x x x x x x x x
The Commission, in the interest of clean, orderly and honest elections, cannot countenance the use of election returns that are "obviously" invalid. In fact, it is its "primary duty" to see to that only genuine or authentic election returns are used by the canvassing boards. There is no other alternative, therefore, except to enforce or administer the settled rule of the case that any election return showing great excess of votes, like excesses ranging from 25 to 100 votes, should not be given any prima facie value for purposes of canvassing.
x x x x x x x x x
ACCORDINGLY, adhering to the sound policy that abhors "mere pyrrhic victory" of candidates and that the holding of elections must, at all times and at any cost, be free, orderly and honest, the Commission RESOLVED to order the provincial board of canvassers of Pampanga not to include in the canvass the election returns for Precincts Nos. 9, 15, 16, 19, 20 and 2 of San Luis, Pampanga, for being mathematically improbable as shown by the great excess of votes appearing thereon for congressional candidates." .
Upon notice of the foregoing resolution of the Comelec petitioner Tiglao, on April 9, 1970, filed before this Court a "Motion to Enforce Judgment (alternatively) Petition For Certiorari (by way of appeal from the Commission on Elections)". This motion-petition was considered by this Court as an appeal from the resolution of the Comelec of April 7, 1970, and was docketed as G.R. No. L-31847. This Court, on April 10, 1970, required respondents Comelec and Cornelio Sanga to file their answers to the motion-petition on or before April 14, 1970, and at the same time issued an order restraining the Comelec from enforcing its resolution of April 7, 1970 and the provincial board of canvassers of Pampanga from acting in accordance with the said resolution of the Comelec. The Comelec and the board of canvassers were also restrained from taking further action on the proceedings regarding the canvassing of votes and proclamation of the winning candidate for representative of the second district of Pampanga.
After the parties were heard on oral argument on two occasions — on April 23, 1970 and on July 16, 1970 — and were allowed to file memoranda, this Court, on August 31, 1970, issued a resolution ordering the annulment of all the proceedings in the Court of First Instance of Pampanga in connection with the petitions for correction of the election returns of the six precincts in San Luis. Pertinent portions of the resolution read as follows:
In our decision of February 18, 1970, we had directed that the proclamation of the winning candidate between the contending rivals be held in abeyance until after the question affecting the same, pending in the Pampanga court, are determined with finality. The challenged Comelec resolution now before us has perforce laid open the question of finality of the Pampanga court's correction ruling — not because of Comelec's resolution beyond its jurisdiction to exclude the corrected returns and thus review and set aside the Pampanga court's ruling — but because of the grave question of due process by virtue of lack of notice of the proceedings on the parties affected, as motu proprio noted by the Court, and which bears heavily on the validity or nullity of the correction proceedings, as hereinafter discussed. Besides, prescinding from the fact that the Pampanga court's ruling was not directly elevated to the Court, it is a settled principle in the administration of justice that "it is always in the power of the Court to suspend its own rules or to except a particular case from its operation whenever the purposes of justice require it."
x x x x x x x x x
ACCORDINGLY, the Court has resolved: (a) to annul and set aside respondent Comelec's resolution of April 7, 1970, and (b) to likewise annul and set aside all proceedings, as well as the "decision" of the Court of First Instance of Pampanga dated February 7, 1970 and its resolution of February 25, 1970 and March 25, 1970 affirming its said "decision", in the correction proceedings, Election Cases Nos. 3653, 3654, 3655, 3656, 3657 and 3659 thereof, with instructions as discussed above particularly in paragraphs 2 and 3 hereof, to hear the same anew with due notice to the candidates affected; to have before it the copies of the election returns sought to be corrected; upon being satisfied prima facie of the errors alleged to have been committed by the boards of inspectors concerned and upon its preliminary finding that the identity and integrity of the ballot boxes have been duly preserved, order the opening thereof and after likewise satisfying itself that the integrity of the ballots therein has been also duly preserved, conduct a summary and arithmetical count of the ballots themselves; and thereafter to render anew the appropriate resolution on the basis of the evidence before it.12
The main opinion considers the resolution of this Court of August 31, 1970 in G.R. No. L-31847 as amendatory the decision of this Court of February 18, 1970 in G.R. No. L-31566. This is one reason why I say that the decision of February 18, 1970 never became final. Let it be noted that this Court's resolution of August 31, 1970 annulled and set aside the decision of the Court of First Instance of Pampanga in the six correction cases which gave petitioner Tiglao the additional 292 votes. This Court's resolution of August 31, 1970 also annulled and set aside the two resolutions (of February 27 and March 25, 1970) of the Court of First Instance of Pampanga denying respondent Sanga's motion for reconsideration of the decision and his motion for a new trial. In other words, this Court itself had removed, or nullified, the basis of the March 19, 1970 resolution which denied respondent Sanga's motion for reconsideration of the decision of February 18, 1970 upon the ground that the question regarding the 75 votes in respondent Sanga's favor had become moot because by decision (of February 7, 1970 of the Court of First Instance of Pampanga petitioner Tiglao had obtained 292 additional votes which were suffice to offset respondent Sanga's lead of 247 votes.
Complying with the order embodied in the above-mentioned resolution of this Court of August 31, 1970, the Court of First Instance of Pampanga re-heard anew the cases relating to the correction of the election returns in the six precincts of San Luis, namely Precincts Nos. 9, 15, 16, 19, 20 and 21. This Court likewise, subsequently, authorized the hearing of the petitions for correction of the election returns of three additional precincts of San Luis, namely Precincts Nos. 3, 8, and 18. Also this Court authorized the correction of the returns in two precincts of Apalit, namely, Precincts Nos. 35-A and 36. As a result of the recount-correction proceedings in the original six precincts of San Luis, in the three additional precincts of San Luis, and two precincts of Apalit, it was reported to this Court, and this Court accepted, that petitioner Tiglao had obtained 238 additional votes and respondent Sanga 51 additional votes.13
Many incidents had to be resolved by this Court, however, before the final reports (decisions) on the correction-recount in the eleven precincts that I have herein mentioned were submitted to this Court. It was not until about August of 1971 when the proceedings regarding the correction-recount in these eleven precincts could be considered as having been decided with finality by the lower court. Besides acting on the decisions-reports on the correction-recount proceeding in the eleven precincts I have mentioned, however, this Court had also to act on the correction-recount proceedings the Court of First Instance of Pampanga affecting Precinct 6 of San Simon.
I have endeavored to make a detailed narration of the incidents relating to precincts other than Precinct 6 of San Simon because it was the election returns in those precincts which were referred to in this Court's decision of February 18, 1970 that were the subjects of correction proceedings pending in the Court of First Instance of Pampanga. In the dispositive portion of that decision of February 18, 1970 it was clearly stated that "the proclamation of the winning candidate shall be held in abeyance until after the questions affecting the same as herein above discussed, pending in the Pampanga court are determined with finality." That decision of February 18, 1970 did not actually determine who of the two opposing candidates — petitioner Tiglao or respondent Sanga — could be proclaimed as the winning candidate. A supplemental decision would yet have to be rendered based on the final determination of the correction proceedings then pending. As finally determined in the correction recount proceedings, not including in the meantime the correction-recount proceeding affecting the election return in Precinct 6 of San Simon, petitioner Tiglao had obtained 283 additional votes, while respondent Sanga obtained 51 additional votes. And so, what this Court declared in its resolution of March 19, 1970, that petitioner obtained 292 additional votes which were sufficient to offset the 247 votes that respondent Sanga was originally credited as his lead over petitioner Tiglao, was not true. The truth is that as a result of the recount-correction in the six precincts of San Luis, petitioner Tiglao had only obtained 18 additional votes, but respondent Sanga had also obtained additional 34 votes. Here is where I stress that the resolution of this Court of March 30, 1970, denying respondent dent Sanga's motion for reconsideration of the February 18, 1970 decision was based on an incorrect premise and so that resolution did not preclude respondent Sanga from asserting that if the 75 votes in San Simon would be credited to him he would have a winning margin over petitioner Tiglao.
And so I now come to the question of whether or not respondent Sanga should be credited with 75 votes in Precinct 6 of San Simon.
On April 1, 1970 all the members of the Board of Election Inspectors of Precinct 6 of San Simon, namely Orlando Ingal as Chairman, Fe Romero as Poll Clerk, Leonardo Tayag as NP inspector, and Restituto Guinto as LP inspector, filed in the Court of First Instance of Pampanga a petition for correction of the election return of Precinct 6 of San Simon. Pertinent allegations of the petition read as follows:
3. That in the preparation of the election return for the said precinct, the Chairman Orlando Ingal — who actually accomplished the same — committed an honest or unintentional mistake by writing "zero" for the votes obtained by Congressional candidate Cornelio Sanga when in truth and in fact the said candidate garnered seventy-five (75) votes in Precinct No. 6 of San Simon, Pampanga, that when the Poll Clerk noticed the error, she called the attention of the Chairman and the other members of the board of inspector to the said mistake; and that, upon unanimous consent or agreement of all the members of the board, the Chairman made the necessary correction by super-imposing with one stroke and at one time the word "seventy-five" over the word "zero" originally written on the election return and the figure "75" over the figure "0" originally written on the said return in the space for the votes cast for candidate Cornelio Sanga; but that the petitioners herein, through oversight, forgot to initial the said correction made on the election return;
4. That yesterday the petitioners were informed that the correction made on the election return was declared not valid by the Supreme Court, thereby causing candidate Cornelio Sanga to lose the seventy five (75) cast for him in Precinct No. 6 of San Simon;
5. That there being no proclamation yet of the winning candidate for Congressman in the second district of Pampanga and in order not to frustrate the will of the electorate in Precinct No. 6 of San Simon, the petitioners are coming to court for the necessary correction of the election return in question or for a confirmation of the correction made in the manner hereinabove set forth, as the case may be.
The petition prayed that they be authorized by the court to correct the election return for Precinct 6 of San Simon "by writing anew if necessary the word "seventy-five" and the figure "75" on the space of the said return for the votes cast for congressional candidate Cornelio Sanga or by merely initialling the corrections therein made on the same election return as herein-above indicated, if this is sufficient in law, and to confirm said correction." The petition was subscribed and sworn to by all the four petitioners. The petition was docketed as Election Case No. 3697.
On April 3, 1970 Judge Malcolm G. Sarmiento presiding Branch I of the Court of First Instance of Pampanga issued an order which reads as follows:
The petitioners having filed in Court a petition to the correction of the election returns in Precinct No. 6 of San Simon, Pampanga, and to give Mr. Rogelio Tiglao his day in court, let the said petition be set for hearing on April 8, 1970 at 8:30 o'clock in the morning.
The Deputy Sheriff is authorized to serve a copy of this order together with a copy of the petition upon Mr. Tiglao and a copy of this Order upon the petitioners at San Simon, Pampanga.
On April 8, 1970 petitioner Tiglao filed a motion to intervene and to dismiss the petition.
On April 8, Judge Sarmiento set the case for hearing for April 10, 1970 at 8:30 o'clock in the morning and at the same time issued a subpoena duces tecum upon the Commission on Elections for delivery to the Court of First Instance of Pampanga of the ballot box for Precinct 6 of San Simon on or before April 10, 1970. Judge Sarmiento granted the petition of Rogelio Tiglao to intervene but held in abeyance the resolution of the motion to dismiss until after the hearing of the evidence. On the day of the hearing petitioner Tiglao, as intervenor in the case, failed to appear. The hearing however, proceeded. In this connection Judge Sarmiento, in his decision dated April 11, 1970, states:
... Copy of the notice of hearing on said date, as well as copy of the order, were furnished to Atty. Estelito Mendoza by special sheriff in the person of Mr. Honorato Figueroa who went to the residence, as well as to the law office, of said Atty. Estelito Mendoza. Persons in said law office refused to receive said order and notice. He proceeded to his residence. He tendered copies of said orders to the wife, Mrs. Estelito Mendoza who also refused to acknowledge receipt of said order and notice.
In his decision of April 11, 1970, Judge Sarmiento said:
That the election return which was retrieved from the ballot box by Atty. Jovito B. Barreras, duly authorized representative of the Commission on Elections to deliver said ballot box to Court, bears the same error or alterations found in Exhibits A, A-1 and B. This election return retrieved from the ballot box is identified as Exhibit C, the same entry namely, after the words "Cornelio Sanga", candidate for Congress in the last election in the Second District of Pampanga under the column word "zero" was first entered, as well as the figure "0", and later on the words "seventy five" were superimposed by the word "zero" and the figure "75" were superimposed on the figures "0".
The Poll Clerk, Miss Fe Romero, explained that when the Chairman of the Board of Inspectors, Mr. Orlando Ingal, prepared the election returns for Precinct No. 6, he committed this error putting the word "zero", as well as the figure "0" after the name of Cornelio Sanga, but in the tally sheet which was retrieved from the ballot box of said precinct, which is identified as Exhibit C, there is no correction nor alteration. The tally sheet is clear on its face and that Cornelio Sanga obtained seventy five (75) in the last elections in this Precinct No. 6. This was shown by the vertilines and diagonal lines under his name in fifteen (15,) columns, five (5) in each column, as well as the entry in figure "75"; and the error was discovered by Miss Romero when she was about to sign her name in the election return, because she knew, according to her on the witness stand, that the number of votes found in the black board or tally board corresponding to Cornelio Sanga was seventy-five. When she saw that after the name Sanga in election return for the Commission on Election, Municipal Treasurer and Provincial Treasurer, identified as Exhibits A, A-1 and B, that Cornelio Sanga obtained zero (0) she called the attention of the Chairman, Mr. Orlando Ingal, who readily agreed to such an error and made the proper correction, meaning to superimposing the word "seventy five" in the entries found in those tally sheets above-mentioned, as well as figure "75" found therein, and so the members of the Board of Inspectors who were preparing the election return concurred to the actuations of the Chairman of the Board of Inspector, Mr. Orlando Ingal who made the corresponding correction, although they inadvertently failed to initial said correction, hence the confusion arising from said correction.
The court is aware that such correction was done in good faith and in compliance to the law to embody the express will of the electorates in said Precinct No. 6; that it is just fair and valid to give course to this petition.
WHEREFORE, the petition for correction is granted, and the petitioners are hereby authorized to initial said Election returns, Exhibits A, A-1 and B at the Commission on Election Office, Manila, including that copy of the Provincial Treasurer which was not presented in this Court, in order to give force and effect to the will of the electorates in Precinct No. 6, within a period of twenty-four (24) hours from receipt of this order.
The record of Election Case No. 3697 of the Court of First Instance of Pampanga, which had been forwarded to this Court, shows that counsel for petitioner Tiglao was furnished with copy of the foregoing decision of Judge Sarmiento on April 13, 1970. The record shows that petitioner Tiglao did not appeal from said decision, nor did he move before this Court to have that decision annulled. Petitioner Tiglao did not ask for the reconsideration of the decision, nor did he ask for the reopening of the case on the ground — which he much later raised before this Court in his memorandum of February 3, 1971 — that he was not properly notified of the hearing.
The record of G.R. No. L-31847 shows that on April 10, 1970 this Court issued a restraining order directed to the Comelec and the Provincial Board of Canvassers of Pampanga which, among others, states:
... You (COMELEC AND BOARD OF CANVASSERS) are hereby restrained from taking any further action or proceeding regarding the canvassing of votes and proclamation of the winning candidate for representative of the Second district of Pampanga.
The foregoing restraining order would explain why in the meantime no action had been taken, by either the Board of Canvassers of Pampanga nor the Comelec, regarding that decision of Judge Sarmiento of April 11, 1970.
I have taken the pains of going over the voluminous records of the three cases now before this Court and I have noted that since April 10, 1970 up to sometime in May, 1971 many incidents had arisen and had to be resolved by this Court, and all these incidents necessarily had to be brought up for consideration by this Court through petitions, motions, answers, reply and counter-reply, memoranda, etc. not to mention about hearings which were conducted before this Court several times; and all these culminated (in the meantime) in the issuance by this Court of the herein oft-repeated resolution of August 31, 1970 which annulled all the proceedings hereintofore conducted in the Court of First Instance of Pampanga and which ordered the rehearing of the cases that involved the six precincts of San Luis, and later three more precincts in San Luis, and to these were added two precincts of Apalit. Necessarily, the Board of Canvassers of Pampanga and the Comelec had to await the results of all the proceedings that took place not only before this Court but also in the Court of First Instance of Pampanga. Both the main opinion and the concurring opinion insinuate that respondent Sanga had deliberately kept quiet about that decision of Judge Sarmiento, that he kept the matter sub-rosa, as if to lie in wait and used it as a surprise weapon against his opponent. I consider this insinuation as most unfair to respondent Sanga and to his lawyers, one of them being a former member of this Court. The insinuation is tantamount to attributing to respondent Sanga and his counsel the rank stupidity of keeping only to themselves something of decisive usefulness for them in these cases. It is like saying that respondent Sanga and his counsel had maliciously done something and kept quiet of what they had done. How could it be said that respondent Sanga kept that decision of Judge Sarmiento sub-rosa when that decision was a matter of public record? The counsel for petitioner Tiglao had notice of that decision two days after it was rendered. Respondent Sanga did not report to this Court that decision of Judge Sarmiento because in the meantime there was no necessity for him to bring up that matter to this Court. After all, the Comelec and the Board of Canvassers could not act on any matter regarding the canvass because of the restraining order of this Court. It should have been petitioner Tiglao, who was aware of that decision, that should have brought that matter before this Court if he wanted that decision annulled or set aside. But, as I have adverted to, petitioner Tiglao did not even ask for the reconsideration of that decision nor for a new trial. When the board of canvassers met on April 6, 1970 respondent Sanga could not yet bring to the attention of the board the corrected return of Precinct 6 of San Simon because at that time the petition for correction was not even heard yet. The hearing took place on April 10 and the decision was rendered on April 11, 1970. But respondent Sanga had brought up the matter regarding the decision of Judge Sarmiento to the Comelec, as I will hereinafter show.
The main opinion and the concurring opinion would stress on the fact that respondent Sanga did not even secure an authority from this Court to seek the correction of the election return of Precinct 6 of San Simon in the Court of First Instance of Pampanga. I believe that it was not necessary for respondent Sanga to secure first an authority from this Court before seeking a correction of the election return in question. I believe that the decision of this Court of February 18, 1970 did not preclude any move on the part of respondent Sanga to secure the correction of the election return in the manner provided by law. It is my view that when this Court, in the decision of February 18, 1970, ordered to credit no vote to respondent Sanga in Precinct 6 of San Simon it was because the election return of that precinct was unacceptable due to the fact that the corrections appearing on its face were not initialed by the members of the board of inspectors. I do not see anything in the decision which would warrant the conclusion that the election return could not be corrected any more, or that if correction was to be sought there was need for an authority from this Court.
Anticipating that the matter regarding the election return of Precinct 6 of San Simon that was ordered corrected by the Court of First Instance of Pampanga would surely come up before the provincial board of canvassers, and in the expectation, presumably, that the provincial board of canvassers would soon be ordered by this Court to resume the canvass, the Comelec, on December 28, 1970, filed before this Court a "Petition for Clarification," which among others, posed the following query:
... Does the decision of this Honorable Court of February 18, 1970, ordering the Commission to credit no vote for Cornelio Sanga in Precinct 6 of San Simon rule out subsequent correction of the return and, thereafter, the decision of the Court of First Instance authorizing the correction of the return resulting in Sanga obtaining 75 votes in said precinct was in excess of the Court's jurisdiction for it amended a final adjudication of this Honorable Court on how much vote to credit Sanga in Precinct No. 6, San Simon, so much so that for the Commission to direct the Board of Canvassers to give effect to the decision of the Court of First Instance of Pampanga to make the canvass on the basis of the corrected return would be tantamount to a violation of the instruction of this Honorable Court not to credit any vote for Sanga in Precinct No. 6, San Simon?
Because of the number of incidents relating to other precincts that were the subject of pending correction proceedings at the time, along with the Comelec petition for clarification, that this Court had to resolve, this Court issued a resolution on February 2, 1971 enumerating the matter or incidents pending before it, and then resolved "to require the parties to move in the premises, within ten days from notice hereof and to consolidate all motions and petition with regard to matters still under dispute, to the end that these cases may be finally terminated and closed".
The parties accordingly filed their consolidated petitions, motions and/or comments regarding the pending incidents. Likewise, the parties filed their corresponding answers and/or replies as the case may be. Finally, on May 18, 1971 this Court issued a resolution, the pertinent portions of which read as follows:
... Without prejudice to an extended resolution upon determination of all pending issues, the Court, taking into consideration the special circumstances of the cases at bar and with a view of fully setting at rest all doubts as to the true and correct results of the election in the disputed precincts, RESOLVED as follows:
x x x x x x x x x
(c) With respect to precinct 6, San Simon, to annul and set aside Judge Sarmiento's decision in Election Case No. 3697, ordering the correction of the return in said precinct so as to credit Sanga with seventy-five (75) vice zero (0) votes therein, and to order said judge to hear anew the said correction case, proceeding strictly in accordance with the procedure set out for correction proceedings in the dispositive part of the Court's resolution of August 31, 1970."
At this juncture I want to make this observation: If my worthy colleagues who have prepared the main opinion and the concurring opinion, and those who now agree with them, are of the view that the decision of this court of February 18, 1970 was already final, or if that decision was already res judicata as far as the seventy five (75) votes for Sanga in Precinct 6 of San Simon were concerned, why did they not say so then when that resolution was before this Court on May 18, 1971? So much time, efforts, energy, not to say expenses, would have been saved by all parties concerned. These cases would have been decided much earlier than now, as should be the case, because these are election cases that involve the public interest.
In compliance with the above-mentioned order of May 18, 1971, Judge Malcolm Sarmiento, the presiding Judge of Branch I of the Court of First Instance of Pampanga, heard anew on June 22, 1971, Election Case No. 3697 - the correction case involving the election return of Precinct 6 of San Simon. After hearing, Judge Sarmiento issued on June 28, 1971 an order, the pertinent portions of which read as follows:
On June 22, 1971, at the hearing in the Office of the Comelec, parties have agreed that they will dispense with the presentation of evidence to substantiate petitioners" allegations of alleged mistake, but agreed to proceed with the recounting of the ballots in Precinct No. 6, San Simon, Pampanga, if and when the integrity of said ballots is not in question.
The Court examined the ballot box and the contents of the same in open court in the presence of the lawyers of both parties. The Court observed that the ballot box and the contents to be good order, no sign of tampering, mutilation or any trace to suspect that the ballots were tampered.
The election return, Comelec's copy, Exhibit A, and the Provincial Treasurer's copy, Exhibit AA, as well as the ballot box copy of the election return, have the same characteristics, to wit: That over and above the word "zero" on the line for "Candidate- Representative," Cornelio Sanga obtained "75" votes, which were superimposed over the word "zero" and on the figure "0" on the same line, the figures "75" were also superimposed; the tally sheet found inside the ballot box, marked as Exhibit C, is clean on its face; that Cornelio Sanga obtained seventy-five (75) votes and that Rogelio O. Tiglao obtained zero (0) in said precinct.
The record further discloses that the total number of registered voters in said precinct is "133" and that out of this number of registered voters, only "107" voted on the election day of November 11, 1969.
The Court ordered the counting of the exact number of valid ballots. The number is one hundred and six (106) valid ballots, because one allot to complete the total number of "107" was considered spoiled by the Board of Inspectors on the ground that the name "Sanga" was written on the space intended for President. This vote should have been considered a stray vote, not a spoiled ballot. Counsel for Cornelio Sanga, Atty. Lorenzo P. Navarro, identified this ballot as Exhibit D and claimed that this vote should be credited for Sanga.
The Court refrains from resolving the question raised by counsel. The recount was ordered and Atty. Porfirio Pineda, the Legal Researcher in Branch I, CFI, was the one reading the ballots, and Miss Irene T. Galura, Branch Clerk in the same Branch, was the one writing on the blackboard to tally the number of votes for Candidates Cornelio Sanga and Rogelio Tiglao.
The result of the recounting, clearly established the following: "That Cornelio Sanga obtained "75" votes and Rogelio O. Tiglao, zero.
Out of the seventy-five votes for Sanga, counsel for Tiglao, Attys. Francisco Villanueva and Octavio de Callar, questioned two votes, Exhibits 1 and 2, of Precinct No. 6, San Simon, on the ground that the name Esteban Manansala appears on the space intended for Senator, when such man was not a candidate for Senator; in other words, they are assailing that these two ballots are marked ballots. On the other hand, counsel for Cornelio Sanga was also claiming one more ballot, Exhibit D-1, wherein the name Sanga was also written at the wrong space, as a valid vote for Sanga.
The Court has allowed these objections and manifestations of counsels for Tiglao and Sanga to appear on record, but refrains to pass on the validity of the ballots, especially Exhibits 1 and 2. The Court believes that the proper forum for determining these questioned ballots is in the election protest.
The Court's jurisdiction in this case is limited only to recount a mathematical process without delving on the validity of the votes.
The original of the election returns, Comelec's copy, "Exhibit A", and the Provincial Treasurer's copy, "Exhibit AA", are kept in the Office of the Comelec and that xerox copies thereof are substituted by the Comelec in lieu of the original.
WHEREFORE, the Court allows the petitioners to make the necessary corrections, which they did on all the election returns submitted to the proper authorities for Precinct No. 6, San Simon, Pampanga, with their proper initials on the basis of the actual number of votes during the recount - Cornelio Sanga, 75, and Rogelio O. Tiglao, 0.
The main opinion, and the concurring opinion, would not now give validity to the judgment of Judge Sarmiento. It is the thrust of the view, expressed both in the main opinion and in the concurring opinion, that the condition prescribed in this Court's resolution of August 31, 1970, before recounting the ballots, had not been complied with. That condition is this: "upon its (court's) preliminary finding that the identity and integrity of the ballot box[es] have been duly preserved, order the opening thereof and after likewise satisfying itself (the court) that the integrity of the ballots therein has been also duly preserved". I do not agree with that view as expressed in the main and in the concurring opinion. It have carefully read and assessed the evidence in the record, and I have come to the conclusion that the identity and the integrity of the ballot box of Precinct 6 of San Simon, and the integrity of the ballot and other documents contained in said ballot box, had been duly preserved. In this connection I reproduce here portion of the record of the proceedings before Judge Sarmiento on June 22, 1971, as follows:
COURT:
We now stipulate on Precinct No. 6 of San Simon, Pampanga. The Court wants to know the observation of Counsel.
ATTY. BARRERAS:
If Your Honor please, we want to make of record that the outside self-locking metal seal, which we placed the last time in San Fernando, Pampanga, during the hearing on April 10, 1970, is the same self-locking metal seal still attached to the ballot box.
COURT:
How can we determine that now?
ATTY. BARRERAS:
We can manifest and state the serial number of the self-locking metal seal.
COURT:
Please read.
ATTY. BARRERAS:
This one reads D-71046. The ballot box number is 69CE-1336 for San Simon, Pampanga, Precinct No. 6.
COURT:
No observation on the part of counsel for Mr. Tiglao as to the outward appearance of the ballot box? .
ATTY. VILLANUEVA:
The box appears to be in good condition, Your Honor please.
ATTY. NAVARRO:
We join the observation of Counsel.
COURT:
Make that of record and the three padlocks are still in tact. (pp. 8-10, t.s.n., June 22, 1971. Emphasis supplied)
x x x x x x x x x
COURT:
Now, where are the keys?
ATTY. NAVARRO:
May we know from Atty. Barreras where and when those padlocks were placed in the ballot box, in San Fernando, Pampanga or not?
ATTY. BARRERAS:
No, here in Manila.
COURT:
You mean to say, all the way from San Fernando, Pampanga, to Manila, the ballot box did not have any padlock?
ATTY. BARRERAS:
But we have the self-locking metal seal.
COURT:
You put the self-locking metal seal in San Fernando, Pampanga?
ATTY. BARRERAS:
Yes, Your Honor.
COURT:
And it is the same self-locking metal seal you placed in San Fernando, Pampanga, that you found now this morning? .
ATTY. BARRERAS:
Yes, Your Honor.
COURT:
We will now open the ballot box. Make of record that Atty. Jovito Barreras, an Officer of the Comelec, opened the three padlocks and breaking the self-locking metal seal.
ATTY. BARRERAS:
The self-locking metal seal placed inside the ballot box is serial No. D-70913.
ATTY. NAVARRO:
That was also placed there in San Fernando?
ATTY. BARRERAS:
Yes, sir, during the hearing on April 10, 1970, in San Fernando, Pampanga. (pp. 14-16, t.s.n., June 22, 1971)
COURT:
All right, we will authorize the poll clerk to get the contents and then you open the contents; get first the election returns and then the tally sheets. We make of record that everything is intact, the ballots, the stabs and the other documents.
ATTY. VILLANUEVA:
Your Honor please, I would like to make of record that from here, without touching, I can see the envelope which is containing the ballot, is already torn.
COURT:
Not only torn, but open.
ATTY. VILLANUEVA:
And the ballots can be withdrawn already from the torn envelope.
COURT:
And that they are only held by rubber band; that the torn envelope referred to by counsel is supposed to contain 107 counted valid ballots, as shown in the label.
ATTY. NAVARRO:
We believe that we cannot state that this envelope containing the ballots has been torn, because ...
ATTY. VILLANUEVA:
It is torn and it is open.
ATTY. NAVARRO:
Because it could not have been closed tightly in view of the bulky part of the ballots therein contained; as a matter of fact, the portion of the envelope at the mouth is bulging and it is very impossible to seal it in the ordinary way that it could have been sealed.
COURT:
From the observation of the Court, the envelope was never closed and the torn part, as observed by counsel for Mr. Tiglao, must be due to the forcing of the ballots inside the envelope, because the ballots are quite bulky, so much so that the envelope is smaller in size than the ballots. What more? .
(POLL CLERK ROMERO, handing to the court the election return)
COURT:
The envelope is already opened. This is the election return, which was formerly marked as Exhibit B-1 during the trial at San Fernando, Pampanga. We will just remove all the contents. These are the stubs on the ballots tied by rubber band. This is the envelope of excess ballots; it is not open; it is still intact, as well as the envelope for marked ballots still unopened. This is the tally sheet; it is already open and marked as Exhibit C at the hearing at San Fernando and as Exhibit C-1, the envelope for the minutes of voting, not yet opened. What is left in the ballot box are the stubs only. Counsels may make the necessary manifestations before we recount the ballots.
ATTY. VILLANUEVA:
For the respondent Tiglao, Your Honor please, we would like to make of record our objection to the recounting of these ballots on the ground that under the decision of August 31, 1970, it must be shown before the recounting that the ballots have been preserved intact. In this particular case, the envelopes supposedly containing the counted valid ballots, under the regulation of the Comelec, must be duly sealed, not only by the flap of these envelopes, but over and above the flap should be the red paper seal duly signed. We believe the requirement of the controlling decision has not been produced.
ATTY. NAVARRO:
We beg to disagree. As observed by this Honorable Court, there is no tampering of ballots nor of the envelope containing the same and the only reason that the envelope could not have been closed is because of the bulk of the ballots therein contained and the tearing of the envelope was caused by the force applied in attempting to insert the ballots as they are rolled into the envelope itself.
COURT:
You submit? .
COURT:
The Court wants to make it of record, because counsel for the respondent, Mr. Tiglao, was absent during the former hearing at San Fernando, Pampanga; that in that hearing at San Fernando, Pampanga, we never touched the ballots for purposes of recounting. The court did not order this envelope containing the valid ballots to be taken or removed from the ballot box and we did not even examine the status or condition of the envelope. It is just now that the Court observed the condition, as manifested by respondent's counsel. It should be made on record that the seal, which is supposed to be placed on top of the opening or at the opening of this purpose, is placed on the side; no tampering on the seal, duly signed by the Poll Clerk, Chairman, Inspectors, etc., bearing the number 0987185; at the bottom in the seal of the Republic with the heading Commission on Election, November 11, 1969. The Court has already manifested and has made of record the reason why the left side of the envelope is now opened and broken, because of the circumstances that the contents (sic) of the ballots are bigger than the size of the envelope, causing the envelope to break. As it is, the Court finds no tampering and we can further examine whether tampering has been made on these ballots contained in this envelope when we examine them individually. Before ordering the recounting, the Court will make an order to examine the election return inside the ballot box to see what appears there. Make of record that the envelope containing the election return is now open. (pp. 17-24 t.s.n., June 22, 1970).
COURT:
Before we go further, we want also to make of record that during the hearing at San Fernando, Pampanga, what the Court retrieved from the ballot box were the election return and the tally sheets, nothing more. I think we marked already the election return inside the ballot box for identification purposes as Exhibit B.
ATTY. BARRERAS:
The votes cast for Sanga.
ATTY. NAVARRO:
We want to make of record that this is placed on the side; no tampering on the seal, duly signed by the Poll Clerk, Chairman, Inspectors, etc., bearing the number 0987185; at the bottom in the seal of the Republic with the heading Commission on Election, November 11, 1969. The Court has already manifested and has made of record the reason why the left side of the envelope is now opened and broken, because of the circumstance that the contents (sic) of the ballots are bigger than the size of the envelope, causing the envelope to break. As it is, the Court finds no tampering and we can further examine whether tampering has been made on these ballots contained in this envelope when we examine them individually. Before ordering the recounting, the Court will make an order to examine the election return inside the ballot box to see what appears there. Make of record that the envelope containing the election return is now open.
(pp. 17-24 t.s.n., June 22, 1970).
COURT:
Before we go further, we want also to make of record that during the hearing at San Fernando, Pampanga, what the Court retrieved from the ballot box were the election return and the tally sheets, nothing more. I think we marked already the election return inside the ballot box for identification purposes as Exhibit B.
ATTY. BARRERAS:
The votes cast for Sanga.
ATTY. NAVARRO:
We want to make of record that the word seventy-five for the entry of votes for Sanga was superimposed on the word zero and the figure "75" on the same line was superimposed over the figure "0" on the ballot box copy of the election return marked as Exhibit B in the first hearing of this case before this Honorable Court.
COURT:
We maintain the same marking?
ATTY. NAVARRO:
Yes, Your Honor.
COURT:
How about the counsel for Tiglao?
ATTY. VILLANUEVA:
We agree to the observation of counsel; as a matter of fact, there is superimposition also in word and figure.
ATTY. NAVARRO:
The word zero is superimposed over the word one, and the figure "0" was superimposed on the figure "0" the same line, ha, no, on the word one on the column "Total Votes Obtained" (in figures). We want to make of record that, according to the election return, Exhibit B, the number of voters that registered in said Precinct No. 6 is one hundred thirty-three (133) and the number of voters who actually voted is one hundred seven (107).
COURT:
Registered voters, how many?
ATTY. NAVARRO:
One hundred and thirty-three. The number of voters who voted is 107 and that it is duly signed by the Board of Inspectors.
COURT:
How many votes for respondent Tiglao?
ATTY. NAVARRO:
It appears here to be zero, Your Honor, both in word and figure.
COURT:
How about the tally sheets?
ATTY. NAVARRO:
The tally sheet which has already been marked as Exhibit C in the first hearing of this case contains the number of votes garnered by the respective candidates indicated by means of four vertical line and it was also by vertical line to indicate the number 5, and according to the tally sheet, there are fifteen such individual sets of "5", meaning to say, "75", whereas, the petitioner Tiglao, according to the tally sheet, got no entry, meaning zero.
COURT:
Make of record also the entry as manifested by Atty. Navarro, which corresponds to Sanga Cornelio, is already identified as Exhibit C-1 in Exhibit C and that the face of Exhibit C is clean; no alteration or correction. For purposes of record, we also mark the entry for the respondent Tiglao, as Exhibit C-2 in Exhibit C, and in Exhibit B, which is the election return, the entry there for respondent, Mr. Tiglao, for identification purposes, be marked as Exhibit B-3-Tiglao in Exhibit B. Now, with this as basis, we now proceed to recounting.
(pp. 25-29, t.s.n., June 22, 1971. Emphasis supplied) .
The ballot box of Precinct 6 of San Simon was opened before this Court on September 30, 1971, and I saw the torn envelope and the ballots as found by Judge Sarmiento. I noted that the big envelope that was supposed to contain the used ballots was torn, and I consider plausible the observation of Judge Sarmiento that the ballots used during the voting were so folded in a bulky manner that when placed inside the envelope the sides of the envelope would be torn. I also saw that the wax at the flap of the envelope appeared not to have been wetted in order to close the enveloped. I examined some thirty ballots and I was satisfied that those ballots were not tampered, because I noted that the handwriting appearing on each and every ballot that I examined did not appear to me as having been done by one hand, indicating that those ballots were prepared by as many voters as the number of ballots that I examined. I did not notice that there was any ballot where a name had been erased and another name is written in the same space by a hand different from the hand that wrote the other names in the ballot. It is my belief that the rest of the ballots, based on my observation of the ballots I examined were also prepared by as many voters as the number of ballots that I did not examine. For the ballots to be considered tampered it must appear on the face of the ballots that either all the ballots, or groups of them, are written by one and the same hand; or that it would appear on the face of the ballots that there are erasures or names already written and superimposed by another name written by a hand different from that which wrote the other names on the ballots. Of the about thirty ballots that I examined I did not see any sign of tampering. Let it be remembered that the counsel for petitioner Tiglao had seen the ballots as they were read during the recount, and necessarily he had fixed his attention to them as they were recounted, because he even objected to two ballots (where respondent Sanga was voted for Representative) upon the ground that they were marked ballots. The marks pointed by counsel for petitioner Tiglao consisted in the word "Manansala", the name of a candidate for member of the provincial board in the special election, was written on the space for senator in each of those two ballots. Surely, if all the ballots were written by one hand, or groups of ballots were written by one hand for every group, or that there were ballots that bore erasures and names were superimposed over the erased names, the counsel for petitioner Tiglao would at least have made of record his observation if not his objection, as he did regarding two ballots which he impugned as marked. But nothing is shown in the record that counsel for petitioner Tiglao made any such observation nor objection. Let it be noted that, as found by Judge Sarmiento, the envelope containing the unused ballots was closed and sealed, indicating that there was no attempt at all to use the unused ballots to substitute for the ballots that were actually cast by the voters and read during the canvass by the board of inspectors. There is no observation at all by any body that ballots intended for other precincts were found inside this ballot box of Precinct 6 of San Simon. We make all these comments because if the ballots inside the ballot box were tampered in order to favor respondent Sanga, some indications of tampering, or ballot substitutions, could have been noted. A malevolent person who would "work" on the contents of the ballot box to favor a candidate would either substitute the ballots already placed therein with ballots prepared by one hand or a few hands, using the unused ballots in the precinct concerned, or using ballots intended for other precincts, or write the name of the candidate to be favored by erasing the name of his opponent and writing the name of his candidate over the erased name. Indeed, there is not an iota of evidence in the record which would even suggest that the ballots found inside the ballot box of Precinct 6 of San Simon had been tampered. The main opinion, and the concurring opinion, simply tried to foist the assumption, nay the speculation, that the ballots inside the ballot box had been tampered because it was shown that at one time the ballot box had only one padlock, and at another time it had no padlock at all but only a self-locking metal seal. But there is no evidence at all that someone had taken advantage of that condition of the ballot box, to open it and change the ballots, or tamper the ballots inside the ballot box. I am afraid my colleagues who wrote the main opinion and the concurring opinion have indulged unduly on presumptions and speculations in asserting that the integrity of the ballot box was not preserved. The best indication that the integrity of the ballot box was violated is when it is shown that the contents of the ballot box indicate signs of having been subjected to some manipulation by human hands. No such indication has been shown. The fact that the envelope which should contain the used ballots was torn on its sides had been satisfactorily explained by Judge Sarmiento after he had made his observation of the said envelope and the ballots inside it when the ballot box was opened before him. If someone had "worked" on the contents of the ballot box he would have made efforts to do a "fine" job by putting the ballots inside the envelope in good order. Any one who would tamper with the contents of a ballot box would do it in preparation for the time when the ballot box would be opened, and so he would see to it that the things inside the ballot box are so placed or arranged as to avoid suspicion that the contents of the ballots had been tampered with, or manipulated, after the board of inspectors had done their job. The fact that the big envelope that should contain the used ballots was torn, and the ballots were so placed in such a bulky way, to my mind, would only indicate that the situation of the envelope and the ballots was not the result of work of guilty hands, but, rather, of innocent hands. And this assertion of mine is borne by the sworn statement the chairman of the board of inspectors of Precinct 6 of San Simon, corroborated by the poll clerk and the other two election inspectors. This is what the chairman and the other members of the board of inspectors said:
That we were the members of the board of inspectors of Precinct 6 of San Simon, Pampanga in the general election of November 11, 1969; I, ORLANDO C. INGAL, being the chairman; I, FE ROMERO, the poll clerk; I LEONARDO TAYAG the NP inspector; and I, RESTITUTO GUINTO, the LP inspector; and that we all served as such in the said election;
That on the night of November 11, 1969, after the canvassing and tallying of the votes cast in our precinct wherein Cornelio Sanga actually obtained seventy-five (75) votes and Rogelio Tiglao, zero (0), the Coleman lamp lighting the polling place ceased to function for lack of petroleum; so we had to use candles in order to be able to finish our work;
That after the light from the Coleman lamp went the out watchers and other persons inside the polling place who were watching the proceedings left the place; that since we were left alone, and fearing that evil-minded persons might come and commit untoward acts against us or to the election paraphernalia in our possession, we hurried up the work which remained to be undone;
That I, ORLANDO C. INGAL, was the one who placed the used ballots inside the corresponding envelope; that in the process I first inserted some of the said ballots lengthwise inside the envelope; that since I was in a hurry, as it was already getting late, I did not do the same thing with the rest of the used ballots, but instead I rolled them in one bunch and quite forcibly inserted them inside the envelope which was thereby accidentally broken by reason of the force applied by me because the opening of the envelope was quite small for the bulk of the rolled ballots; and that thereafter the corresponding paper seal was placed on the envelope and rubber band tied around the broken portion in order to hold the ballots inside, after which the same envelope containing the used ballots and other election paraphernalia were placed inside the ballot box which we closed permanently with two (2) self-locking metal seals and three (3) padlocks;
That We, FE ROMERO, LEONARDO TAYAG, and RESTITUTO GUINTO, were all present when the chairman ORLANDO INGAL placed the used ballots inside the corresponding envelope which was broken accidentally in the manner hereinabove described; and that we actually saw him do the same.14
The main opinion, and the concurring opinion, make capital of the following circumstances; that on April 10, 1970, the ballot box was brought from the Comelec bodega in Manila to San Fernando, Pampanga by one Atty. Jovito P. Barreras, a compadre of respondent Sanga, who was a trial attorney in the law enforcement division of the Commission on Elections and who was the supervisor of elections in the province of Pampanga in the elections of November 11, 1969; that when the ballot box was brought to San Fernando it had only one padlock which had no key, so that to open that padlock before the Court of First Instance Atty. Barreras had to use a hammer; that the ballot box was opened before the Court of First Instance on April 10, 1970 and the ballot box copy inside the box and the tally sheet were examined by Judge Malcolm Sarmiento before whom Election Case No. 3697 for the correction of the election return of Precinct 6 of San Simon was pending; that when the ballot box was closed it had no padlock, but was only secured by a self-locking metal seal; that when the ballot box was brought back to Manila it had no padlock at all and it was deposited in the bodega of the Comelec without any padlock until June 14, 1971 when it was secured with three padlocks. The main opinion and the concurring opinion would assume that because the ballot box did not have any padlock when it was brought from San Fernando and deposited in the bodega of the Comelec without padlock until June 14, 1971, the integrity of the ballot box and its contents was thereby violated.
I wish to emphasize, however, that there is no evidence which would show that Atty. Jovito Barreras, or any other person, had opened that ballot box from the time it was brought from San Fernando to Manila on April 10, 1970 and until June 22, 1971. Much less is there evidence which would show that Atty. Jovito Barreras, or any other person, had any thing to do with the contents of the ballot box from the time it was brought from San Fernando on April 10, 1970 until the time when that ballot box was opened before Judge Sarmiento on June 22, 1971.
On the other hand, there is an uncontradicted evidence in the record that this ballot box of Precinct 6 of San Simon was first opened before the Comelec on January 5, 1970 for the purpose of retrieving therefrom the ballot box copy of the election return and the tally sheet, for examination. As to why the ballot box was secured by only one padlock after it was opened before the Comelec, there is no explanation in the record. The ballot box was brought to San Fernando on April 10, 1970, in compliance with the subpoena duces tecum of the Court of First Instance of Pampanga, by Atty. Jovito Barreras, accompanied by Joaquin Isaac who was the person in charge of the safe-keeping of the ballot box at the armory or bodega of the Comelec in Manila. Barreras and Isaac went to San Fernando on a jeep driven by the Comelec driver named Santos Barbosa. These were the same three persons that brought the ballot box back to Manila. Upon arrival at the Comelec offices in Manila the ballot box was turned over to Joaquin Isaac who was in charge of the same, and the ballot box was deposited at the Comelec bodega in Manila. True it is that the ballot box had no padlock when it was delivered to Joaquin Isaac for deposit in the Comelec bodega on April 10, 1970, and it remained without padlock until June 14, 1971, but it was secured by self-locking metal seals both inside and outside. On June 14, 1971 the representative of petitioner Tiglao and the representative of respondent Sanga, probably having become aware that the ballot box of Precinct 6 of San Simon was deposited in the bodega of the Comelec with no lock, and having known that the ballot box would be opened before Judge Sarmiento on June 22, 1971, requested the Comelec to put padlocks thereon, and so three padlocks were placed on the ballot box. The evidence shows that when the ballot box was opened before Judge Sarmiento on June 22, 1971, it was still secured by the same self-locking metal seals both inside and outside as the ones that were placed when the ballot box was closed in San Fernando on April 10, 1970. If on June 14, 1971 petitioner Tiglao, or his counsel, had already an inkling that the integrity of the ballot box was not preserved, as they later claimed, instead at having the ballot box secured with three padlocks they should have complained to the Comelec that the integrity of the ballot box was not preserved as of then.
While the main opinion, and the concurring opinion, dwell on assumptions and speculations in asserting that the integrity of the ballot box and its contents was not preserved, I believe, on the other hand, that there is ample evidence in the record which clearly show that the integrity of the ballot box and the ballots was preserved. If the ballot box had only one padlock after it was opened before the Comelec on January 5, 1970, and was deposited with only one padlock in the Comelec bodega, and it was brought to San Fernando on April 10, 1970 with only one padlock, there must have been some non-compliance of standing rules and regulations of the Comelec by some official or employee of the Comelec. If that ballot box had no padlock after it was opened in San Fernando on April 10, 1970, and it was deposited in the bodega of the Comelec without any padlock until June 14, 1971, although it had a self-locking metal seals inside and outside it, certainly the non-compliance by the personnel of the Comelec of the rules and regulations of the Comelec should not be counted against respondent Sanga, unless it is shown by clear and positive evidence that the non-compliance of the rules and regulations was part of a scheme to commit an irregularity to favor respondent Sanga. Why should respondent Sanga be penalized for the fault or omission of some persons in the Comelec who did not comply strictly with the standing rules and regulations of the Comelec? The fact that Atty. Jovito Barreras was a compadre of respondent Sanga certainly is not enough basis to conclude that Atty. Barreras served as an instrument of respondent Sanga to commit an irregularity in order to favor him, in the absence of clear and positive evidence that Atty. Barreras had done some anomalous acts to favor respondent Sanga. As I have pointed out, there is absolutely no evidence to show that Atty. Barreras or any confederate of his, had done anything which would link his, or their, acts, to the existence of the 75 ballots, and the tally sheet which recorded 75 votes for respondent Sanga, that were found inside the ballot box of Precinct 6 of San Simon.
It is my firm belief that the ballots as found inside the ballot box of Precinct 6 of San Simon, and as examined by Judge Sarmiento and recounted before him during the hearing on June 22, 1971, constitute mute, but eloquent, evidence that respondent Sanga had obtained 75 votes in that precinct. Judge Sarmiento had made the finding that those ballots were not tampered at all. My own examination of some thirty of those ballots convinced me that the integrity of all those ballots inside the ballot box had been preserved. The findings of Judge Sarmiento must be given weight, as against assumptions and speculations. It is a settled rule that the findings of facts of a trial judge should not be disturbed by the appellate court unless it is shown that the trial judge had grossly overlooked facts and circumstances of weight and influence in the record and their significance misapplied - which is not so in the present cases.15 And more so, because the ballots were brought before this Court. Those ballots are the realities that have met the eyes of this Court. It is also the settled rule in election cases, which involve public interest, that the court should not close its eyes to the realities before it, and that technicalities and procedural barriers should not be allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials.16
If this court would not give value to those ballots that were examined and recounted by Judge Sarmiento, and actually brought before Us, this Court may as well say that those ballots are illegal ballots and should not be counted for respondent Sanga. But if this Court is not prepared to declare those ballots illegal, then in the interest of justice I believe that We should give respondent Sanga the benefit of the doubt by declaring that he obtained 75 votes in Precinct 6 of San Simon, while petitioner Tiglao had obtained no vote. The findings of Judge Sarmiento, and what I actually found when the ballots were brought before this Court, are but confirmations of the original finding and conclusion of the Comelec that the superimpositions found in the election return of Precinct 6 of San Simon were simply a case of correction and not tampering of the return. The findings and conclusion of Judge Sarmiento, and my own observation of the ballots, are but confirmations of the correctness of the tally sheet in Precinct 6 of San Simon that was first observed by the Comelec when the ballot box was opened before it on January 5, 1970. Certainly it can not be said that as early as before January 5, 1970 the ballot box of Precinct 6 of San Simon was tampered by Atty. Barreras and his confederates in order to favor his compadre Cornelio Sanga; and certainly that tally sheet could not have been manufactured by Atty. Barreras or his confederates in preparation for the opening of the ballot box and the examination of the election return therein contained on January 5, 1970.
In sum, I say that respondent Sanga had really obtained 75 votes in Precinct 6 of San Simon, Pampanga, in the elections of November 11, 1969, and the Provincial Board of Canvassers of Pampanga should credit him with those 75 votes.
Lastly, I can not give my conformity to that part of the dispositive portion of the main opinion which declares the decision in these cases immediately executory. Why should the door be immediately shut against respondent Sanga and prevent him from coming to this Court and make such further move in defense of his right and the rights of the electorate of the second representative district of Pampanga that voted for him in the elections of November 11, 1969, if the interest of justice so demands? When the decision in this case is promulgated petitioner Tiglao will surely lose no time in securing his proclamation by the Provincial Board of Canvassers of Pampanga, and once he is proclaimed respondent Sanga has no other recourse but to file a protest before the Electoral Tribunal of the House of Representatives. Why can not We leave the decision in these cases to take its regular course to its finality, as is ordinarily allowed by this Court under the Rules of Court and the law?
Makalintal and Castro, JJ., concurs.
Footnotes
1 See Annex 1 to Motion for reconsideration of respondent Sanga, dated March 7, 1970, pp. 511-550, Record, Volume I, of L-31566.
2 G. R. No. L-31566.
3 See pages 2 and 3 of the main opinion.
4 See page 6 of the main opinion.
5 Denied by the Court of First Instance of Pampanga in its resolution of March 10, 1970.
6 On March 25, 1970, the Clerk of Court of the Court of First Instance of Pampanga certified that as of that date the motion for retrial and recall of petitioners (election inspectors) and witnesses (filed by respondent Sanga) had not yet been resolved. See page 655, Record of L-31566, Vol. II..
7 Pages 635-639, Record, Vol. II.
8 Pages 650-654, Record, Vol. II.
9 Note that in footnote 6, ante, We stated that as of March 25, 1970 the Clerk of Court certified that as of that day the motion for retrial, etc. was not yet resolved. It could have happened that the Judge resolved the matter on the same day (March 25, 1970) but after the certification was made by the Clerk of Court. This shows that when the March 23 resolution of this Court was made, the Pampanga CFI had not yet passed upon the motion for new trial, etc.
10 Page 699, Record of L-31566, Vol. II. See page 7 of main opinion.
11 Referral of the Board of Canvassers, Annex D of Petition in G.R. No. L-31947, Record of L-31847, Vol. I, pages 56-57.
12 See pages 9-13 of the main opinion. emphasis supplied.
13 Page 20, main opinion.
14 See joint affidavit of Orlando Ingal, Fe Romero, Leonardo Tayag and Restituto Guinto, attached as Annex 6 to Respondent Sanga's Reply to Petitioner's Supplementary Opposition, etc., Record of L-31566, Vol. III, no paging.
15 Sharp & Co. Inc. vs. Commissioner of Customs, 22 SCRA 760, 763. See also Vinzons vs. Comelec, 73 Phil. 247; and Sotto vs. Comelec, 76 Phil. 516.
16 Juliano vs. Court of Appeals, L-27477, July 28, 1967, 20 SCRA 808, 820; See cases cited therein.
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