EN BANC
G.R. No. 122872 September 10, 1997
PENDATUN SALIH, petitioner,
vs.
COMMISSION ON ELECTIONS, OMARHASSIM ABDULMUNAP and FAWSI ALONZO, respondents.
Separate Opinions
PANGANIBAN, J., separate opinion:
In two recent unanimous en banc decisions,1 the Court reiterated the general rule that in resolving pre-proclamation controversies grounded on Section 2432 in relation to Sections 234, 235 and 236 of the Omnibus Election Code, "the Comelec and the Board of Canvassers . . . need not look beyond the face of the [assailed] election returns."3 And that "as long as the returns appear to be authentic and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting or the counting of the votes."4 Indeed, "[a] party seeking to raise issues the resolution of which would compel or necessitate Comelec to pierce the veil of election returns which appear prima facie regular on their face, has his proper remedy in a regular election protest."5 This limitation is impelled by the public policy which requires summary resolution of pre-proclamation cases and by practical realities demonstrating that boards of canvassers "do not have the facilities, the time and even the competence to hear, examine and decide on alleged election irregularities . . . ." I do not think there is any dispute on this general rule. I restated it anyway because the ponencia of Mr. Justice Hermosisima seems to convey the impression that this Court has some equivocation on this doctrine. There is none. I do not detect any in Mr. Justice Davide's Concurring and Dissenting Opinion either.
Apparently, the case now before us hinges on the substantive question of whether to include in the canvass the contested election returns in two precincts, namely 10 and 10-A. If both are included, as the Comelec en banc did, Private Respondent Alonzo would win the elections. But if both are excluded, as the Comelec Second Division did, petitioner would win. To paraphrase Hamlet, to include or not to include is the question. (Parenthetically, I should add that the total count for the remaining uncontested valid election returns and the exact count for each of the two contested precincts should have been indicated in the assailed Comelec orders or should have been pointed out by the parties in their pleadings because a pre-proclamation plea can be granted only where petitioner can show that a nullification of one or both returns will materially affect the election results.6 This is especially important where more than one precinct is involved, as each precinct may be ruled upon separately and the result may or may not be affected depending on the total votes validated or invalidated thereby.)
In any event, the Comelec Second Division excluded the two contested election returns on the ground that they were "obviously manufactured or were falsified" based on the following findings:
(1) For Precinct 10 —
(a) There were only 586 registered voters in this precinct, but on the election return it appears that 602 cast their ballots for the gubernatorial candidates. Citing Tagoranao vs. Comelec,7 the Second Division ruled that "the existence of excess votes" as shown on the face of the election return "convey[s] the manufacture and fabrication thereof."
(b) "Considered in the light of the other anomalies in the other precinct[s] in the same barangay of SAPA, which is admittedly the home barangay of candidate Alonzo," the Second Division held — but without mention of any supporting evidence — that "there is every reason to conclude that the narration and objections of the other candidates to the inclusion of the above return [have] strong and valid basis." Among these "objections" of the other candidates are: no actual voting allegedly took place in the precinct, and the election return was prepared by the "followers of [C]andidate Alonzo." To repeat, no hard evidence was however mentioned by the Second Division to back up such allegations.
(2) For Precinct 10-A —
(a) There was a "lack of signatures" of the election inspectors on the election returns.
(b) "[T]here [was] no showing that the thumbmarks (on the returns) do or do not belong to the BEI members."
(c) BEI members executed a joint affidavit stating that the election return. "was prepared and worked AFTER the counting of ballots. . ."
To be sure, the Resolution of the Second Division dated June 28, 1995 was not a model of clarity and precision in explaining why it decided to exclude these two election returns.8 It was a hodgepodge of the petitioner's allegations which were confusingly melted down to the Resolution's findings. That notwithstanding, the Comelec en banc ruled that the "conclusions [of the Second Division] fall short of the criteria established for the proper and strict appreciation of the evidence on record." It ratiocinated:
. . . The affidavits executed by the watchers of [P]etitioner Salih, as heretofore mentioned, were misleading and did not meet the standards for appropriate consideration (Pimentel, Jr. vs. COMELEC, 140 SCRA 136). In short, there were no specific evidence to prove the abnormality and irregularities allegedly committed in Precinct No. 10-A. Neither is there basis to rule that there were excess votes in Precinct No. 10 because the total registered voters for this precinct is 586 and the combined votes of the four (4) mayoralty candidates is only 562. (Doruelo vs. COMELEC, 133 SCRA 376). Moreover, the assertion against the BEI of Precinct 10-A is belied by the minutes of the Board and to attribute wrongdoing in the preparation of the election return for this precinct is a misinterpretation of the import of their joint affidavit which is but an error in semantics.
x x x x x x x x x
All told, We find no solid nor convincing evidence to warrant the exclusion of the election returns of Precinct Nos. 10 and 10-A from the canvass and hereby ORDER their inclusion in the canvass.
On the basis of the above discussion, I believe that the Comelec en banc should be sustained and the petition dismissed for the following reasons:
(1) The simple fact that the total votes cast for the gubernatorial candidates exceeded the number of registered voters for Precinct 10 cannot invalidate the election return because, as pointed out by the Comelec en banc, the relevant position at issue here is not that of governor, but that of mayor for which the total votes cast for all candidates was only 562, whereas the total number of registered voters was 586.
(2) The other reason given by the Second Division for invalidating the return in Precinct 10 is plainly speculative and not based on hard evidence. True, petitioner alleged that no actual election took place in this precinct and that the return was prepared by the followers of Private Respondent Alonzo, but even the Second Division could not anchor its ruling on any hard evidence substantiating such allegation. Said Division merely concluded that, in as much as Precinct 10 was geographically close to Precinct 10-A, both being located in Barangay Sapa, then the anomalies that allegedly took place in Precinct 10-A must have infected Precinct 10. I believe that speculation can never be a substitute for evidence in any legal proceeding and cannot overturn the presumption of regularity in the execution of an election document.
(3) The lack of signatures and the non-identification of the thumbmarks, while patent on the face of the Precinct 10-A return, are not by themselves sufficient to invalidate the said return.9 In any event, the chairman and two members of the Board of Election Inspectors in said precinct executed a joint affidavit10 satisfactorily explaining this lapse, as follows:
3. If we failed to affix our signatures in the election returns, as all what we did is we thumbmarked the elections [sic] returns, then thru the poll clerck [sic] we wrote/printed our names, we did not sign the election return[s], as we thought that after thumbmarking it, that was all that we were to do in so far as the thumbmarking is concerned. If we knew then that we have also to sign, we will definitely do the same. Nevertheless the thumbmark appearing thereo[n] at the bottum [sic] of the election returns is our thumbmark. We even initialed each column of the election return[s], that is in the taras line of each candidate. Definitely our failure to sign the election return[s] is due to our inexperience. Election returns No. 120602 of precinct no. 10-A was prepared and worked by us after the counting of the ballots and done inside the PNP building where the ballots were transferred to the municipal hall at Silantup, Ungus Maiata, Tandubas. Also perhaps to the lack of sleep and exhaustion for the work during the election day proper, the watching of the ballot box for two nights at the municipal hall, as well as the work done the whole day of May 10, 1995, Wednesday, has something to do with the performance of our work. We even forgot to make the necessary entries in page three of the election return[s], which copy with no entry whatsoever thereo[n], remains in our possession inadvertently. For these ommissions [sic] we have committed we are asking the proper authorities to give us the understanding. We are willing to sign the elections [sic] returns and to make the necessary entries on page three of the elections [sic] returns, if authorized and allowed;
(4) The aforequoted portion of the joint affidavit attesting to the belated preparation of the return in Precinct 10-A is formidable evidence pointing to the probability of its having been "manufactured," even if the Comelec en banc belittled such tardiness by citing contrary provisions in the minutes of the BEI and by labeling it "an error in semantics." I agree with Mr. Justice Davide's stand that Section 212 of the Omnibus Election Code requires the BEI to prepare the election return simultaneously with the counting of votes in the polling place, and that a violation of this requirement is enough to invalidate an election return; otherwise, the floodgates to fraud may be opened.11 However, this rule will not apply to the present case because, granting arguendo that this return should be invalidated, petitioner has not shown by any computation, as I earlier explained, that the results would be materially affected. Otherwise stated, petitioner has not demonstrated that the non-inclusion of the return in Precinct 10-A will make him win the election. In every pre-proclamation controversy, the petitioner must show that the inclusion/exclusion he or she seeks will change the results.12 Otherwise the petition will be dismissed, as in this case.
(5) The petitioner has not overcome the presumptions of regularity in the performance of official duties and the validity of election documents to a point sufficient to warrant the exclusion of the two contested returns — at the very least, the return in Precinct 10.
(6) The findings of facts of the Comelec are entitled to great respect, even finality, since it is the agency specially tasked by the Constitution to administer elections.13 Petitioner has not shown that the Comelec committed GRAVE ABUSE of discretion in its declaration that "no solid or convincing evidence warrant[s] the exclusion of the election returns of Precinct Nos. 10 and 10-A." There is grave abuse of discretion when the exercise of judgment is capricious and whimsical such that it becomes tantamount to lack of jurisdiction, or "where the power is exercised in an arbitrary or despotic manner by reason or passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law."14 Such arbitrariness or despotism does not obtain here.
(7) Petitioner has not presented any cogent reason or ground to deviate from the firm rule that in pre-proclamation controversies, the Comelec and the boards of canvassers need nor look beyond the face of election returns. He has not satisfactorily shown that the questioned returns are nor authentic. The allegation that they were prepared long AFTER the counting — which would have been sufficient ground to show that they were "manufactured" — remained just that in the case of Precinct 10, an allegation without adequate proof; and in the case of Precinct 10-A, without any showing that its exclusion would enable petitioner to win.
8. Finally, the assailed en banc Resolution found that "Petitioner Salih did not raise any objection during the canvass of the election returns for Precincts 10 and 10-A as evidenced by the Minutes of the Proceedings. Only [C]andidates Matba, Jaafar and Abdulmunap, through counsel, questioned these election returns (pages 3 to 11, Minutes) with annexes '1' and '2' [CE Form 26-B]"; and that in any event, petitioner failed to perfect his appeal from the ruling of the MBC within the "non-extendible" reglementary five-day period, pursuant to Section 20, RA 7166,15 which expired on May 23, 1995. Salih filed his appeal only on May 27, 1995. In Dimaporo, we ruled that failure to comply with pre-proclamation requirements is fatal.
. . . We reiterate the mandatory requirement to comply with the procedure for pre-proclamation controversies in view of the public policy to have a quick determination of the result of the election. By [their] nature, pre-proclamation controversies already delay proclamation. To allow the deviation from procedural requirements is to open cases of this nature to protracted uncertainty because new grounds and new issues can be raised at the different levels of jurisdiction. 16
If only for the foregoing procedural lapse (which is a finding of fact binding on this Court) and for no other, this petition should be dismissed.
In sum, I hold that the return in Precinct 10 cannot be excluded because there is no hard evidence showing that it was prepared AFTER the counting. While the joint affidavit of the BEI admittedly proves that the return in Precinct 10-A was prepared AFTER the counting, such return cannot be invalidated just the same because petitioner has not-demonstrated that its exclusion would alter the election result, i.e., that he would win. And the Comelec en banc's factual finding that petitioner failed to object to these two returns during the MBC proceedings and/or that his appeal from the MBC ruling was filed late is the final lethal blow to this petition.
WHEREFORE, I vote to DISMISS the petition for its failure to show grave abuse of discretion on the part of Respondent Commission.
Davide, Jr. and Puno, JJ., concur.
Footnotes
1 Matalam vs. Commission on Elections, G.R. No. 123230, April 18, 1997; and Loong vs. Commission on Elections, 257 SCRA 1, May 16, 1996.
2 "Sec. 243. Issues that may be raised in pre-proclamation controversy. — The following shall be proper issues that may be raised in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;
(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the stranding of the aggrieved candidate or candidates."
3 Matalam vs. Comelec, pp. 1-2.
4 Loong vs. Comelec, p. 23.
5 Dipatuan vs. Comelec, 185 SCRA 86, May 7, 1990.
6 Dimaporo vs. Comelec, 186 SCRA 769, June 26, 1990; Matalam vs. Comelec, supra.
7 22 SCRA 978, March 12, 1968.
8 Quoted hereunder is the Second Division's very language "justifying" the exclusion of the Precinct 10-A returns:
"Considered in the light of other anomalies in the other precinct in the same barangay of SAPA, which is admittedly the home barangay of candidate Alonzo, Precinct No. 10-A, there is every reason to conclude that the narrations and objections of the other candidates to the inclusion of the above return [have] strong and valid basis. The election return from Precinct 10 cannot therefore be canvassed as a valid return, and should be excluded. The ruling of the canvass board allowing the canvass of the said return is therefore reversed." [emphasis in the original]
9 See Arroyo vs. House of Representatives Electoral Tribunal, 246 SCRA 384, July 14, 1995; Pimentel, Jr. vs. Comelec, 140 SCRA 126, November 19, 1985; Guiao vs. Comelec, 137 SCRA 356, July 5, 1985; Baterina vs. Comelec, 205 SCRA 1, January 6, 1992.
10 Annex 7 to Private Respondent Alonzo's Comment; rollo, p. 231.
11 While this irregularity does not appear on the face of the election return, non-compliance with the requirement under the Omnibus Election Code that the said election document be accomplished simultaneously with the counting of ballots is a ground to invalidate the said election return. As this anomaly pertains to the election returns and not to the ballots, it must be addressed at the earliest possible time, i.e., in the pre-proclamation case. To allow its resolution only in an election protest is, indeed, to open the floodgates to fraud.
12 Dimaporo vs. Comelec, supra; Matalam vs. Comelec, supra.
13 Navarro vs. Comelec, 228 SCRA 596, December 17, 1993; Lozano vs. Yorac; 203 SCRA 256, October 28, 1991.
14 Bustamante vs. Commissioner on Audit, 216 SCRA 134, 136, November 27, 1992, citing several cases; Sinon vs. Civil Service Commission, 215 SCRA 410, November 5, 1992, also citing several cases.ℒαwρhi৷
15 "Sec. 20. Procedure in Disposition of Contested Election Returns. — (a) Any candidate, political party or coalition of political parties contesting the inclusion or exclusion in the canvass of any election returns on any of the grounds authorized under Article XX or Sections 234, 235 and 236 of Article XIX of the Omnibus Election Code shall submit their oral objection to the chairman of the board of canvassers at the time the questioned return is presented for inclusion in the canvass. Such objection shall be recorded in the minutes of the canvass.
(b) Upon receipt of any such objection, the board of canvassers shall automatically defer the canvass of the contested returns and shall proceed to canvass the returns which are not contested by any party.ℒαwρhi৷
(c) Simultaneous with the oral objection, the objecting party shall also enter his objection in the form for written objections to be prescribed by the Commission. Within twenty-four (24) hours from and after the presentation of such an objection, the objecting party shall submit the evidence in support of the objection, which shall be attached to the form for written objections. Within the same period of twenty-four (24) hours after presentation of the objection, any party may file a written and verified opposition to the objection in the form also to be prescribed by the Commission, attaching thereto supporting evidence, if any. The board shall not entertain any objection or opposition unless reduced to writing in the prescribed forms.
The evidence attached to the objection or opposition, submitted by the parties, shall be immediately and formally admitted into the records of the board by the chairman affixing his signature at the back of each and every page thereof.
(d) Upon receipt of the evidence, the board shall take up the contested returns, consider the written objections thereto and opposition, if any, and summarily and immediately rule thereon. The board shall enter its ruling on the prescribed form and authenticate the same by the signatures of its members.
(e) Any party adversely affected by the ruling of the board shall immediately inform the board if he intends to appeal said ruling. The board shall enter said information in the minutes of the canvass, set aside the returns and proceed to consider the other returns.
(f) After all the uncontested returns have been canvassed and the contested returns ruled upon by it, the board shall suspend the canvass. Within forty-eight (48) hours therefrom, any party adversely affected by the ruling may file with the board a written and verified notice of appeal; and within an unextendible period of five (5) days thereafter, an appeal may be taken to the Commission.
(g) Immediately upon receipt of the notice of appeal, the board shall make an appropriate report to the Commission, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report.
(h) On the basis of the records and evidence elevated to it by the board, the Commission shall decide summarily the appeal within seven (7) days from receipt of said records and evidence. Any appeal brought before the Commission on the ruling of the board, without the accomplished forms and the evidence appended thereto, shall be summarily dismissed.
The decision of the Commission shall be executory after the lapse of seven (7) days from receipt thereof by the losing party.
(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election. (Emphasis supplied.)
16 Dimaporo vs. Comelec, supra, p. 787.
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