EN BANC
G.R. No. L-53793 June 29, 1981
LEONOR A. GARCIA, petitioner,
vs.
THE HONORABLE COMMISSION ON ELECTIONS, THE CITY BOARD OF CANVASSERS OF CABANATUAN CITY COMPOSED OF EDILBERTO B. REGALADO AS CHAIRMAN AND MELVIN P. TIONGSON AND MA. VICTORIA A. ESTOESTA AS MEMBERS, and HONORATO C. PEREZ, SR., respondents.
G.R. No. L-54277 June 29, 1981
HONORATO C. PEREZ, SR., petitioner,
vs.
THE HONORABLE COMMISSION ON ELECTIONS and LEONOR A. GARCIA, respondents.
Separate Opinions
FERNANDO, C J., concurring:
The scholar in, and comprehension opinion for the Court Justice Makasiar represents a thorough inquiry into the factual and legal aspects of the two petitions before us. From that premises laid down, it does not admit of doubt that it has full and ample support from the decisions relied upon by him. Although there is for me sufficient justification for viewing the matter in a different light, I concur in tile result for reasons to be set forth.
1. As noted in the dissenting and concurring opinion of Justice Teehankee, the ruling in Laguda v. Commission on Elections,1 decided on February 20, 1981, where I was the ponente, could have been decisive. For me, that should be the general rule. It would, to my mind, result in reducing the. number of pre-proclamation controversies and thus lessen burden not only on the Commission on Elections but even on this Court, when regrettably long after the election with victorious candidate proclaimed, the losing party would still insist on its pre- proclamation aspect. Laguda, however, is noted by Justice Teehankee "apparently [has] not taken roots", an appraisal which I hope will no longer hold true in the near future. Nonetheless, in the opinion of the Court as well as that of Olfato v Commission on Election,2 likewise penned by Justice Makasiar, this Court under circumstances that impel such an approach, applied the principle announced in Usman v. Commission on Elections,3 Cauton v. Commission on Elections,4 and Aratuc v. Commission on Elections.5 For a ma majority of my brethren then, these decisions have not, in the language of Justice Laurel lost their virtuality."
2. Nor can it be said that there is no juristic support for a diversity of result in cases which apparently are not dissimilar. It is for me one of the merits of the decision-making process if instead of a single rule at one extreme and the exact opposite on the other, usually labelled an exception, there is instead a continuum. Its utility to serve the cause of justice is to me quite apparent. Instead of mutually exclusive categories of black and white, there may be a penumbra which, in the language of Justice Holmes "may shade from one extreme to the other." That would allow for the individualization of justice, depending on the peculiar environmental facts of each case. To quote from Morris Cohen: "It would thus seem that life demands of law two seemingly contradictory qualities, certainty or fixity and flexibility; the former is needed that human enterprise be not paralyzed by doubt and uncertainty, and the latter that it be not strangled by the hand of the dead past."6 This is true especially of public law, where there is a need for a principle broad enough to bring within its compass diverse and varied circumstances. It would go far in solving the eternal conflict between rule and discretion, which dates back to Aristotle.
3. That is from the conceptual standpoint. Nor is the approach thus taken based solely on what to me is dictated by legal theory. What had transpired since the January 30 election yields support for the conclusion reached. As far back as March 27, 1980, respondent Perez was proclaimed as winner by the City Board of Canvassers in the electoral contest. He, therefore, assumed the functions of City Mayor. He continues to do so. He has been discharging the duties for more than a year. To grant the petition in G. R. No. 53793 would result in setting aside the proclamation of respondent Perez so that petitioner Garcia could be proclaimed and thereafter hold such office. Considering the lapse of time, it occurs to me that to allow at this time such transfer of the position would hardly be in the public interest, There would be instability once again in the situation, which as a result of a bitter electoral contest has not been too peaceful. In a choice of what step to take, given the range of discretion possessed by this Court, it is my view that our decision is not tainted by unfairness and is not oblivious to the realities of the present state of affairs.
Hence my concurrence in the result. It is now up to respondent Commission to assure a prompt determination of the matter with full unimpeded opportunity for both parties to prove their respective claims.
Footnotes
1 G.R.No.53-747. Justice Concepcion Jr., did not take part.
2 G.R. No. 52749, March 31, 1981.
3 L-33325, December 29, 1971, 42 SCRA 667.
4 L-25461 , April 27, 1967, 19 SCRA 911.
5 L-49705-09, February 8, 1979, 88 SCRA 251,
6 Cohen, Law and the Social Order, 261 (1933).
Separate Opinions
TEEHANKEE, J., dissenting and concurring:
I dissent from the majority judgment in the first and man, case (G. R. No. 53793) dismissing the petition filed by petitioner Leonor A. Garcia to set aside the questioned Comelec resolution whereby it summarily and with grave abuse of discretion ordered the exclusion from the canvass and nullification of forty election returns in the January 30, 1980 elections for the mayoralty of Cabanatuan City (totalling 9,762 votes or representing about 20% of the total of some 53,530 votes cast and thereby depriving Leonor of her electoral victory margin of 2,356 votes and making Honorato C. Perez, Sr. instead appear as the winner by some 1,000 votes) on the basis of mere self-serving affidavits of said respondent Perez' partisan and paid KBL watchers, according more credence thereto than official affidavits of all the public school teachers comprising the Citizens Election Committees in the forty voting centers in question, notwithstanding that said official affidavits were duly buttressed by the presumption of regular performance of official duty and by unimpeached official minutes of the voting and official investigations and reports by the PC Chief of Constabulary and INP Director-General, Major General Fidel V. Ramos, to President Ferdinand E. Marcos that Perez' and Assemblyman Angel Concepcion's complaints against the PC/INP in the province of Nueva Ecija were "false and exaggerated" and "without factual basis" and "intended merely as a face-saving device ... in the wake of their resounding defeat" and indicative of "an emerging pattern of complaints by losing candidates to blame their political defeats on the PC/INP rather than to admit their rejection by the people."1 (On the basis of said official reports, "the President (had) clear(ed) Lt. Col. Fontanilla and order(ed) his return as Prov'l Comdr. of Nueva Ecija").2
I concur with the judgment in the second case (G. R. No. 54277 dismissing Perez' petition and sustaining the Comelec resolution of June 18, 1980 which set aside its previous dismissal of, and reinstated Leonor Garcia's cautionary election protest against Perez and allowed the same to continue and to be properly determined on the merits. It would be the grossest injustice if after having deprived in summary proceedings Leonor Garcia of her proclamation on February 2, 1980 by the regularly constituted canvassing board and of her electoral victory, the Comelec would yet deprive her of her basic and legal right to prosecute her election protest, as the original midnight Comelec resolution of May 15, 19803 sought to do (with then retiring Chairman Leonardo B. Perez of the then 5-member Commission abstaining).
I. Re: the first and main case (G.R.53793) -
As may be seen from the majority decision itself, on the basis of the voting and canvass of the election returns Leonor emerged as the indisputable winner of the mayoralty elections of Cabanatuan City over the then incumbent Mayor Perez with a commanding margin of 2,356 votes out of 53,530 votes cast and was duly proclaimed as such by the city board of canvassers on February 2, 1980.
Perez progressively filed a series of petitions to nullify the winning margin of Leonor: first, on January 31, 1980 a petition for recount votes in 18 barangays alleging deficient returns in Chat KBL votes for him were allegedly not counted; then he filed on February 1, 1980 an amended petition for exclusion of the returns in 5 barangays and for opening of the ballot boxes and recounting the votes, alleging that Leonor had resorted to "massive vote buying", "terrorism", "flying voters", "non-counting of KBL votes" and other election irregularities; and on February 5, 1980, the filed still a second amended petition for exclusion of all returns from 9 barangays and a recount of the ballots alleging the commission of the same irregularities as in his first amended petition.
Respondent Comelec lost no time in accomodating Perez. On February 1, 1980, it ordered suspension of the canvass upon receipt of Perez's first petition (but the same was not honored because of justified doubt as to its authenticity, since only a xerox copy of the chairman's order of suspension was produced and not a copy duly issued by the telegraph office) and it dispatched a special Comelec team headed by Lt. Col. Francisco V. Samala "to exercise direct and immediate suspension and control". On February 6, 1980, the Comelec further set aside the February 2, 1980 proclamation of Leonor, and constituted a new board of canvassers replacing the original board and directed that all election returns be brought to Manila for canvassing at its offices in Manila.
Pursuant to the Comelec's instructions, the new canvassing board headed by Edilberto Regalado commenced the recanvass in Manila and after hearing the parties and receiving their documentary evidence, the Comelec's own board denied Perez's petition for exclusion of the 40 contested election returns (exclusion of which would wipe out 6,550 votes of Leonor as against 3,212 votes of Perez, and wipe out the 3,338 vote margin of Leonor therein and leave her a net loser to Perez be some 1,000 Notes in the remaining 176 voting centers whose alone would be canvassed). The canvassing board correcting ruled. following the "polestar" doctrine of Aratuc vs. Comelec4 that "the question of whether or not there had been any terrorism, vote-buying and other irregularities in the election should be ventilated in a regular election protest"5 and that "extreme caution" must be exercised and "only upon the most convincing proof" may election returns be rejected as obviously manufactured or false".
So for a second time, The Comelec's own canvassing board had properly determined Leonor to be the undisputable winner of the election and was set to proclaim her again on March 6, 1980 following the Comelec's own policy resolution No. 9440 the proclamation of whining candidates notwithstanding the pendency of pre-proclamation cases, when it was nevertheless prevented by a contrary restraining order of the Comelec.
After hearing the oral argument of the parties but without receiving any additional evidence (although it turned out later it unilaterally and ex-parte called in its handwriting exerts without even informing the prejudiced party Leonor thereof nor furnishing her with copy of their alleged findings), the Comelec then issued its questioned Resolution of March 27, 1980 ordering the exclusion of the 40 returns in question and nullification of the decisive and unbeatable winning margin of 3,338 Votes obtained by Leonor in said 40 voting centers and therewith the proclamation of Perez as the winner with a margin of 1,111 votes, which was forthwith done by its canvassing board.
This action of the Comelec was arbitrary and with grave abuse of discretion amounting to lack of jurisdiction and in violation of law and the Court's controlling doctrinal jurisprudence and criteria.
1. In over ruling its own board of canvassers and ordering the exclusion from the canvass of the 40 election returns on the basis of the self-serving affidavits of the partisan and paid watchers of Perez of alleged vote-buying and terrorism, etc., all stated in mere generalities, the Comelec preferred to believe the word of these paid partisans of Perez and rejected the official affidavits of all the public school teachers comprising the Citizens Election Committees of the 40 voting centers concerned denying and belying their partisan charges and further disregarded the presumption of regular performance of official duty by the teachers. Worse, the Comelec repudiated and gave no credence to the official findings of the investigation made by the P. C. Chief, Major General Fidel V. Ramos (whose credibility rating can be taken note of as among, if not, the highest in the military hierarchy) that the charges were and are "false" and "without factual basis" and were but "a face-saving device in the wake of Perez resounding defeat" at the polls. And worst of an, the Comelec likewise repudiated and gave no credence to the President's own evaluation and approval of the PC Chief's official investigation report and findings - contrary to the deference and credence due thereto.
2. The majority opinion rejects summarily PC Chief General Ramos' official report, without citing any substantial evidence or hard facts, on the bare speculative conclusion that "the investigation report of Brig. Gen. Vicente E. Eduardo relied upon by herein petitioner, was obviously tainted with bias, hence unreliable, considering that his son was a candidate in one of the towns of Nueva Ecija and, understandably, any adverse report from him relative to the conduct of election in his area of responsibility would be prejudicial to, if not a black mark on, his record and performance as PC/INP Regional Commander."6 Such conclusion is to say the least unkind, reflecting as it does on the integrity of the PC/INP Regional Commander as well as on the actions of the PC Chief who verified and transmitted the official report and of the President who approved the same. What has been lost sight of is that the affidavits of Perez' paid and partisan watchers do not give any specifics or details as to how many voters of Perez were driven away from each voting center, how many flying voters were able to vote in each voting center, and who were the armed men "terrorizing" at the precincts and their number, so much so that even at this late date there have been no charges, much less prosecutions that have been brought to our attention. The total unworthiness of these face-saving affidavits is all the more brought home when it is considered that Perez was the incumbent mayor and dominant KBL candidate with all the resources of the city and party organization behind him as against his opponent newcomer Leonor who was running under the banner of a newly organized small local party, the Lapiang Pagkakaisa ng Bayan.
3. The decisive criterion of the law and the controlling doctrine of the Court's jurisprudence, cited in the majority opinion but unfortunately not applied herein, down to the oft-cited leading case of Aratuc vs. Comelec 7 is that "where it has been duly determined after investigation and examination of the voting and registration records that actual voting and election be the registered voters had taken place in the questioned voting centers, the election returns cannot be disregarded and excluded with the resulting disenfranchisement of the voters. but must be accorded prima facie status as bona fide reports of the results of the voting for canvassing and proclamation purposes. Where the grievances relied upon is the commission of irregularities and violation of The Election Law the proper remedy is election protest. (Anni vs. Izquierdo et al, L-35918, June 28, 1974)."
As further stressed therein, canvassing boards and the Comelec must exercise "extreme caution" in rejecting returns and man, do so only upon the "most convincing proof" that the returns are obviously manufactured or fake. Any plausible explanation, one which is acceptable to a reasonable man in the light of experience and of the probabilities of the situation, should suffice to avoid outright nullification with the resulting disenfranchisement of those who exercised their right of suffrage."8 Here, the 40 election returns, per admission of the parties are clear and do not contain erasures or superimpositions and the signatures thereon of the Citizens Election Committee members are admittedly genuine.
Thus, in the therein cited precedent of Anni vs. Izquierdo 9 "(T)he Court set aside the questioned Comelec resolution which ordered the outright exclusion and rejection of the returns of 89 precincts from 7 Sulu municipalities as "manufactured returns" (because of excess votes) and thereby excluded over 5,000 votes for petitioner notwithstanding the admitted existence of actual voting therein and their having been duly verified by the Comelec examination of the registration and voting records to have been validly cast by the duly registered voters, which if not arbitrarily rejected, were much more than sufficient to maintain petitioner's margin of victory over respondent for the third and last provincial board member seat of Sulu." In Villalon 10 as well as in Tagoranao 11 the Court likewise set aside the Comelec resolutions which excluded the canvass of the returns in some decisive precincts (spelling the margin of victory or defeat for the protagonists) on the ground of excess votes since "We would not say there is"most convincing proof" of excess votes which would authorize the conclusion that the pertinent return is "obviously manufactured," "utterly improbable and clearly incredible" and should be disregarded in the canvass, thereby resulting in the elimination from the count of the honest votes cast therein," stating further that "the function of separating the honest (votes) from the dishonest ones . . . . belongs exclusively to the electoral tribunals or to the courts in respect to local elections" in the corresponding election protest.
In the oft-cited case of Bashier vs. Comelec 12 the Court once again stressed that where "there was actual voting, in the absence of strong evidence establishing the spuriousness of the returns, the basic rule of their being accorded prima facie status as bona fide reports of the result of the count of the votes for canvassing and proclamation purposes must be applied without prejudice to the questions being tried on the merits with the presentation of all competent evidence, testimonial and real in the corresponding electoral protest The Court took the occasion to explain therein that in the said cases involving the election of delegates to the 1971 Constitutional Convention of Lanao del Sur as well as in the other cases of Diaz 13 (involving the returns from Sagada, Mt Province in the 1970 election of delegates to the Constitutional Convention) and of Usman 14 (involving the 1970 Lanao del Norte election of Constitutional Convention delegates), it had allowed evidence aliunde and the Comelec's examination of the voting records to determine and verify whether spurious returns had been manufactured by "fake voting done by a handful of persons" . . . "in [these] critical areas where fabricated and spurious returns have been the rule rather than the exception"; but that such exclusion of the returns was uncalled for when there is no question that there has been actual voting and regular returns duly prepared and submitted at the end of the voting by the election inspectors (now C.E.C members), as in the present case.
4. The case of Leonor is much stronger than in any of the abovecited cases. —
— There is no question that actual voting had been conducted on election day at the hours set by law;
— Cabanatuan City is right in the heart of Central Luzon with the election properly supervised by the Comelec as well as by the police and constabulary authorities with ready access to the public media, whereby irregularities and terrorism could be immediately reported and malefactors apprehended in flagrante delicto;
— Cabanatuan City has never been stained with the reputation of the critical areas in the North or South "where fabricated and spurious returns have been the rule rather than the exception";
— There is not even any question here of any excess votes recorded over the number of registered voters nor of the notorious fraud hallmarks of practically blanking the opponent with zero votes. Leonor bested Perez in these precincts by a margin of 2 to 1, even in Perez' own bailiwicks; and
— The self-serving charges of alleged terrorism made by the official candidate of the predominant KBL against his lady opponent were immediately investigated and found to be "false" and "without factual basis" by official report of the PC Chief to the President who cleared the same and reinstated the provincial commander.
5. Prescinding from the foregoing controlling jurisprudence and criteria that call for the setting aside of the Comelec's arbitrary and summary exclusion and nullification of the 40 returns in question, a brief rundown of the specifics will readily show the lack of factual and evidentiary basis for the Comelec's action:
(1) Comelec excluded 6 returns on its own evaluation and conclusion supposedly confirmed by its handwriting experts that they were written by one and the same person "indicating that the same are manufactured returns."'15 This was denial of due process, as correctly averred by Leonor since no evidence at all was presented during the entire proceedings before the canvassing board in Cabanatuan City nor before the Comelec in Manila. Such alleged opinion and findings of the handwriting experts were unilaterally and motu proprio sought by Comelec ex-parte and only after the submittal of the case on the basis of the documentary evidence duly submitted by the parties and were revealed for the first time only in the questioned Comelec resolution itself. Leonor was never even informed of such alleged findings nor afforded the opportunity to refute the alleged findings.
Leonor's submittal that such a feat was a physical superhuman impossibility because the precincts were located at least 1 to 3 kilometers from each other and for one person to have filled up the said returns (writing the names of a total of 40 candidates for governor, vice governor and the Sangguniang Panglalawigan and for mayor, vice mayor and the Sangguniang Panglungsod the respective votes for each candidate as tallied as well as for the plebiscite on the extension of tenure of members of the judiciary, sum up the total in words and figures therefor and sign the names of three public school teachers for each of the returns) would have required "superhuman capacity and speed" since by midnight of election day, all returns had already been submitted to the city election registrar in the heart of the city.
The majority opinion's rejection of Leonor's plaintiff of denial of due process on the ground that "the parties dispensed with the presentation of testimonial evidence ... and (she) therefore waived further presentation of evidence" begs the question and in no way justifies Comelec's resort to evidence aliunde (after submittal of the case) by way of the alleged findings of its handwriting experts without according Leonor due process by informing her thereof and giving her the opportunity to refute the same.16
The majority opinion's speculation in response to Leonor's contention of physical impossibility of one person writing all the returns within the time involved based on "common sense and perception" that "this Court cannot close Its eyes to the possibility that the election returns contested by herein private respondent could have been prepared before election day, or even on election day and distributed among the different voting centers with the connivance of the members of the Citizens Election Committee, if they were not terrorized",17 certainly cannot be substituted for the lack of hard and substantial evidence to support Comelec's arbitrary conclusion or its speculation, specially since not even Perez has even questioned that actual voting took place in all the precincts, and that the returns were thereafter submitted in due course to the canvassing board.
(2) Comelec excluded 17 other returns (3 because "entries (were) written by two different persons," and 14 because there were "no signatures/initials of all the members after the entry of votes for each candidate."18) As to the 3 returns where entries were written by 2 different persons, this cannot nullify the returns because it is common place in elections that such entries be made by two of the three public school teachers CEC members, and Comelec made no finding, as it could not because these were not questioned at all on this ground, that the entries were not made by the teachers - CEC members, and instead capriciously nullified the returns. As to the other14 other returns where the entries are not closed with the teachers' signatures or initials, there is no legal basis whatever to justify Comelec's action because Section 172 of the 1978 Election Code precisely mandates that where "some requisites as to form or data had been omitted in the election returns, the [canvassing] board shall return then by the most expeditious means to the corresponding election committees for correction." Such omissions which do not affect at all the integrity of the returns cannot bring about the disenfranchisement of the innocent voters therein to the prejudice of their valid choice and nullify their votes, as Comelec has arbitrarily done. It must be regretfully stated that the majority opinion's ratiocination that "Section 172 imposes such a duty on the board of canvassers, not on the Comelec"19 cannot stand. Comelec may very well direct the board to comply with the mandate of Sec. 172 and send back the returns to the election committees to do the ministerial job of closing the entries with their initials. But, really, as stressed in Aratuc "it is of decisive importance to bear in mind that under Section 168 of the Revised Election Code of 1978 the [Comelec] shall have direct control and supervision over the board of canvassers and that "[as] a superior body or office having supervision and control over another [the canvassing board], [Comelec] may do directly what the latter is supposed to do or ought to have done. "20 As Comelec had taken over from the second canvassing board it itself had constituted in replacement of the original board and stopped it from proclaiming Leonor, it became its duty to apply the corrective provisions of the law under Section 172, not to nullify the returns.
Also, to say that "the omission of the signatures or initials" which happens many times because of ignorance of the rules, haste, oversight or the lateness of the hour, 1 stamps the election returns with the indelible mark of falsity and irregularity" using the language of Usman 21 equating that case with the case at bar is unfair and unkind, to say the least. A perusal of Usman will readily show that there is no comparisson: In Usman Comelec conducted an examination and analysis of the voters' fingerprints and signatures "more than sufficed to completely overcome the prima facie value of the 42 election returns from Karomatan, strongly belying their integrity and authenticity. These circumstances definitely point, not merely to a few isolated instances of irregularities affecting the integrity and authenticity of the election returns, but to an organized, well-directed large-scale operation to make a mockery of the elections in Karomatan. " This was further buttressed "by the very high percentage of voting in the 42 precincts of Karomatan - with 100% voting in 10 precincts and with more than 100% voting in 10 precincts" and "the notorious election record of Karomatan in previous elections since 1953 indicating a phenomenal increase in the voting population."22 No such thing could be said of the election in Cabanatuan City, where admittedly there was regular and actual voting, as certified by the teachers - C.E.C members themselves and the official report of the PC Chief duly approved by the President himself.
(3) Comelec excluded and nullified the remaining 20 other returns (for a total of 40 returns) cavalierly on general "grounds that certain election returns were prepared thru criminal collusion of members of the C.E.C thru the intervention and/or dictation of armed men of candidate Garcia"23 without any specification of which of said returns were prepared voluntarily thru criminal collusion and which were prepared forcibly at the dictation of armed men, and who were the public school teachers - C.E.C members who committed the criminal collusion and who were the victims of the armed men, none of whom were likewise Identified. Such generalities based on self-serving affidavits of Perez' henchmen certainly do not come up to the standard of the clearest and most convincing evidence that would justify the nullification of the returns and the disenfranchisement of the innocent voters. Up to this late date, there have not been any results of the investigation of Perez' charges as ordered by the Comelec in its resolution.
At bottom, as indicated at the onset, the self-serving affidavits of Perez' paid partisan watchers fall far short of constituting "the most convincing proof" that would warrant rejection of the returns in the face of the official affidavits of the public school teachers - CEC members attesting to the regularity of the election processes and buttressed by the presumption of regular performance of official duty. The downgrading of the teachers' affidavits as "surprisingly Identical or similar and consist(ing) mainly of general denials, hence, cannot be accorded greater weight and credence" despite their execution by public officials in the performance of official duty must not be allowed to stand, since the fact that affidavits by a party "are of one style or wording is nothing unusual, since in actual practice, the words of an affidavit are not necessarily those of the affiant and when the same matter is to be attested to, almost invariably, the affidavits of several persons appear to be Identical mutatis mutandis without minimizing in any significant degree their intrinsic worth for the purpose for which they have been prepared."24
The majority opinion's acceptance at face value of Perez' affidavits as "more consistent with the evidence of fraud and other irregularities found by the Comelec"25 cannot stand scrutiny as already discussed hereinabove.ℒαwρhi৷
Much less can said affidavits be given credence over the official investigation report of the PC Chief as approved by no less than the President that the same are "false and exaggerated" and "intended merely as a face-saving device" for Perez' "resounding defeat. The trivial and self- serving statements reproduced in the majority opinion26 are the best evidence of the correctness and veracity of the PC Chief's investigation report, As admmitted in the very election report submitted by Perez, quoted in the majority opinion, "no killing has been committed during the entire period but Mayor Perez reported massive e terrorism? and vote-buying in several barangays."27
6. Perez' proper recourse is an election protest, as held by the Court in the recent case of Laguda vs Comelec,28 penned by the Chief Justice for a unanimous Court, (which however has apparently not taken roots yet despite the host of other precedents.) The case's background is Identical to that at bar, with Laguda who failed in his attempt at reelection as municipal mayor seeking the suspension of the canvass on the ground of "alleged electoral frauds or irregularities . . . the alleged threats and presence of subversive and terrorist elements." But the Comelec correctly ruled therein (as it likewise likewise in Sampaco,29 Villegas30 and Leviste 31 and many other cases) - unlike in the case at bar- that the grounds are "proper grounds for an appropriate election contest wherein [the loser] may ventilate his grievances. .. In sustaining the Comelec, the Court held that "an inquiry on the grounds ... would necessarily entail the presentation of conflicting testimony. To pass on such a complex matter in a summary proceeding would be to run the risk that the decision arrived at would not reflect the realities of the situation. It could even be susceptible to the charge that the whole truth did not come to light. Under the circumstances, an election protest clearly is the more appropriate remedy." The case at bar is the most eloquent proof of the validity of the said pronouncements of this Court.
7. In discussing Leonor's petition questioning the Comelec action of excluding the 40 questioned returns aid thus depriving her of her commanding margin of victory (as determined twice by the original canvassing board as well as the second board constituted by Comelec itself the majority opinion ruled that "the petitioner (Leonor) failed to show patent and grave abuse by respondent COMELEC of its authority to exclude from the canvass election returns which are, on their faces, obviously tampered with and/or manufactured."32 Herein lies the fatal premise and lack of factual and legal basis for the questioned Comelec action - as shown extensively hereinabove, in no was do said returns show that they are "on their faces, obviously tampered with and/or manufactured." Perez asked for a useless recount but Comelec erased Leonor's decisive 3,338 vote margin by excluding the 40 precincts.
Consequently, the Comelec action must be set aside as "capricious, arbitrary and whimsical exercise of power, the very antithesis of the judicial prerogative in accordance with centuries of both civil law and common law tradition."33
The broad powers given to Comelec under the 1973 Constitution merely incorporates the liberality with which the Court has always treated the Comelec's performance of its duty to guard against the use and inclusion of false, tampered or manufactured returns as per the cases of Usman and Aratuc cited in the majority opinion.34 This does not mean that Comelec may flip or flop as it wishes in any given case. It is governed by the decisive criterion of the law and the controlling doctrinal jurisprudence reaffirmed in Aratuc itself as the "polestar", which I beg to state once again, that where as in this case there has been actual voting, the election returns must be accorded prima facie status as bona fide reports of the voting for canvass and proclamation purposes and the proper remedy in case of complaints of election irregularities is the election protest. Where Comelec goes against the law and controlling jurisprudence, it commits a grave abuse of power and discretion and the Court must strike down its arbitrary action, if it is not to abdicate its responsibility of judicial review under the Constitution and "slip into a judicial inertia."35
I therefore vote for the granting of Leonor Garcia's petition to set aside the Comelec resolution, and with the proper inclusion in the canvass of the 40 returns wrongfully excluded, to proclaim her as the duly elected mayor of Cabanatuan City.
II. Re the second case (G.R. 54277), as already indicated, it would be the grossest injustice, given the majority judgment in the first case upholding Comelec's exclusion of the 40 returns that deprived Leonor Garcia of her decisive margin of victory, if she were to be deprived even of her right to make "the whole truth come to light" in the appropriate election protest where the question of inclusion or exclusion of the 40 returns could be properly "tried on the merits with the presentation of all competent evidence, testimonial and real,"36 instead of summary pre-proclamation proceedings with mere affidavits. I vote therefore, with the majority in this second case, in its dismissal of Honorato C. Perez, Sr.'s petition which would set aside the Comelec resolution that reinstated Leonor Garcia's election protest ad cautelam for proper determination after trial on the merits.
Footnotes
1 Annexes R-1, R-2, and R-3, petition.
2 Exh. 21, at page 275, Record.
3 Issued on the eve of the retirement on May 17, 1980 of three members of the Comelec. See The writer's separate opinion in G.R. No. 53962. Omar vs. Comelec. February 3, 1981.
4 88 SCRA 251, 283 (1979).
5 Idem, at page 283.
6 At pages 20-21.
7 88 SCRA 251, 282-283 per Barredo emphasis copied.
8 Id. at page 282. citing Anni vs Izquierdo 57 SCRA 692 per Teehankee J.: Villalon vs. Comelec. 34 SCRA 594 per Barredo. J.: Tagoranao vs Comelec per Fred Ruiz Castro J., 22 SCRA 978.
9 See fn. 8.
10 34 SCRA, at page 605, emphasis supplied.
11 See fn. 8
12 43 SCRA 238, 263, per Teehankee, J
13 42 SCRA 426, per Reyes, J.B.L. J.
14 42 SCRA 670, per Fred Ruiz Castro, J.
15 Majority opinion, at page. 17.
16 Ang Tibay vs. Court of Industrial Relations, 40 OG. 7th Supp. 29.
17 Majority opinion, at page 19.
18 Idem, at pages 15-16.
19 Majority opinion, at pages 19-20.
20 88 SCRA at page 273.
21 Majority opinion, at page 20, citing Usman vs. Comelec, 42 SCRA at page 686.
22 Idem at pages, 687, 688.
23 Majority opinion, at page 16,
24 Sinsuat v. Pendatun separate opinion of Barredo, J. 33 SCRA 630,695.
25 Idem, at page 22.
26 Idem, at pages 25-33.
27 Idem, at pages 32-33, emphasis supplied.
28 G.R. No. 53747, Feb. 20, 1981.
29 G.R. 53454, March 25. 1980.
30 G.R. 52463, Sept. 4, 1980.
31 G.R. 52687, Feb. 26, 1980.
32 Majority opinion at page 23.
33 Panaligan vs. Adolfo, 67 SCRA 176.
34 At pages 23-24.
35 NLRB vs. Brown, 13 Law Ed. 2d 839.
36 Bashier vs. Comelec, 43 SCRA at page 263.
The Lawphil Project - Arellano Law Foundation
