G.R. No. 133509

EN BANC

G.R. No. 133509 February 9, 2000

AQUILINO Q. PIMENTEL, JR., petitioner,
vs.
COMMISSION ON ELECTIONS, LIGAYA SALAYON, ANTONIO LLORENTE, and REYNALDO SAN JUAN, respondents.

DE LEON, JR., J.:

Before Us is a petition for certiorari under Rule 65 seeking the invalidation of the Resolutions, dated January 8, 1998¹ and March 10, 1998², issued by public respondent Commission on Elections (COMELEC) dismissing, for lack of probable cause, petitioner Aquilino Pimentel's complaint³ against private respondents Atty. Ligaya Salayon and Antonio Llorente, Chairman and Vice-Chairman, respectively, of the City Board of Canvassers for Pasig City, and Reynaldo San Juan, Campaign Manager of senatorial candidate Juan Ponce Enrile, for decreasing petitioner's votes in the Statement of Votes (SoVs) per precinct and in the City Certificate of Canvass (CoC)⁴ for Pasig City.

The following facts are not in dispute:

On May 8, 1995, petitioner ran in the national elections as a candidate for senator. Among others, Anna Dominique M. Coseteng, Juan Ponce Enrile, Marcelo B. Fernan, Gregorio Honasan, Ramon V. Mitra; and Rodolfo G. Biazon also ran as senatorial candidates.

Based on the election returns from all the precincts in Pasig City, the total votes⁵ garnered by petitioner and the other abovementioned candidates are as follows:

Biazon 86,068

Coseteng 66,498

Enrile 54,396

Fernan 69,910

Honasan 60,974

Mitra 55,823

Pimentel 72,377

Said election returns were turned over to the City Board of Canvassers of Pasig City for canvassing.

The Certificate of Canvass (CoC) for Pasig City showed the same aforementioned candidates to have each garnered a different number of votes, viz.:

Biazon 83,731

Coseteng 54,126

Enrile 91,798

Fernan 69,712

Honasan 62,159

Mitra 56,097

Pimentel 68,040

Said CoC was certified as to the correctness of the entries made therein, by private respondents Salayon and Llorente who signed the same⁶ and affixed their thumbmarks⁷ thereto.

The same private respondents, in their capacity as Chairman and Vice-Chairman of said board, prepared the Statement of Votes (SoVs) for every precinct in Pasig City. Likewise, they certified as to the correctness of the entries made in the SoVs by signing the same and affixing their thumbmarks thereto.

When totalled, the votes reflected in said SoVs as having been garnered by the same candidates above, add to a yet different result, viz.:

Biazon 87,214

Coseteng 67,573

Enrile 90,161

Fernan 72,031

Honasan 62,077

Mitra 56,737

Pimentel 67,936

In sum, the total votes garnered by said candidates as recorded in the election returns, the CoC, and the SoVs for Pasig City, are as follows:

Candidates Election Returns Certificate of Canvass Statement of Votes

Biazon 86,068 83,731 87,214

Coseteng 66,498 54,126 67,573

Enrile 54,396 91,798 90,161

Fernan 69,910 69,712 72,031

Honasan 60,974 62,159 62,077

Mitra 55,823 56,097 56,737

Pimentel 72,377 68,040 67,936

Based on the election returns, the following increase or decrease in the total number of votes garnered by said candidates is evident:

Candidates Election Returns Certificate of Canvass Increase/Decrease Statement of Votes Increase/Decrease

Biazon 86,068 83,731 -2,337 87,214 +1,146

Coseteng 66,498 54,126 -12,372 67,573 +1,075

Enrile 54,396 91,798 +37,402 90,161 +35,765

Fernan 69,910 69,712 -198 72,031 +2,121

Honasan 60,974 62,159 +1,185 62,077 +1,103

Mitra 55,823 56,097 +274 56,737 +914

Pimentel 72,377 68,040 -4,337 67,936 -4,441

Significantly, the total number of votes for senatorial candidate Enrile showed a substantial increase of 35,765 while that for petitioner showed a substantial decrease of 4,337 in the CoC and 4,441 in the SoVs. The same pattern was revealed in the way the number of Enrile votes per precinct in some 101 precincts in Pasig City exceeded the total number of voters who actually voted in the May 8, 1995 elections. Only 9,031 voters actually voted, as recorded in the SoVs of said precincts, but the Enrile votes totalled 11,255, broken down as follows:

SOV
Number Precinct
Number No. of
Voters
Who Voted Enrile votes
appearing
in SOV

14336 401 100 115

14336 403-A 74 90

14336 402-A 81 90

14336 400 87 98

14338 273-A 11 15

14338 268-B-1 7 15

14340 56 114 120

14340 46 136 150

14340 503-A-1 70 96

14340 391-B 80 101

14342 311-A 105 140

14342 299 107 122

14342 296 107 170

14342 294-B 115 183

14342 339-A 59 142

14342 351-A 82 142

14384 290-A-1 33 40

14384 495-A 82 98

14384 290-D-1 84 95

14384 385-A-1 86 92

14384 293 98 99

14424 324-A 116 147

14424 323-A 121 140

14424 326-A 90 91

14426 114 104 127

14426 130 107 145

14426 125 108 149

14426 442-B 108 151

14426 129-A 115 155

14426 131-A 120 139

14426 440-A 122 138

14426 101-A 141 144

14426 137 144 145

14426 123 146 152

14428 46-A-D-1 28 88

14428 493-A 103 119

14428 457 121 125

14428 384-A 65 76

14428 286 68 71

14428 378-A 72 79

14428 288-A-D-1 92 105

14428 291-B 97 190

14430 191-A-1 27 91

14430 273-B-1 103 110

14430 223 105 111

14430 270 108 110

14430 267 11 20

14430 264-A 119 120

14430 263 67 70

14430 221-A 84 95

14430 224-A 89 94

14430 273-A-D-1 94 102

14430 271 96 100

22793 432-A 67 84

22831 495-A-1 113 125

22833 50-A 121 124

22835 465-B 105 125

22835 465 109 132

22835 452-B 115 121

22835 382-B 84 101

22835 471-A-1 91 99

22841 397-A 165 180

22841 350-A 97 125

22841 466-A 160 165

22843 290-A 62 80

22845 379-A-D-1 42 120

22845 380-A-1 110 118

22845 292-A-1 120 128

22845 384 43 55

22845 288-D-1 45 90

22845 287-B 64 69

22845 381-D-1 69 92

22845 382-A 75 85

22845 492-A 77 134

22845 286-B 78 90

22845 378-A 84 140

22845 382-A-1 90 98

22845 377 93 98

22911 63-A-D-1 160 165

22911 367 67 111

22911 372 70 101

22911 356-A 84 98

22911 499 88 120

22948 161-A 50 89

22948 155 51 95

22948 158 59 89

22948 522 76 125

22948 167 91 127

22949 21-A-1 80 95

22949 5 96 105

5685 300 114 12

5685 320-A 69 126

5685 372-A-D-1 72 115

5685 373-A 77 99

5693 327 114 156

5693 325 114 127

5694 357 69 123

5694 360 75 133

5694 294-A 82 83

5694 341-A 89 129

5694 330-A 96 142

Total
9,031
11,255

On September 17, 1996, citing the above discrepancies, petitioner filed with the COMELEC, a Complaint-Affidavit charging private respondents with violation of Section 27 (b) of Republic Act (R.A.) No. 6646, otherwise known as the Electoral Reforms Law of 1987. Petitioner therein alleged, thus:

x x x x x x x x x

3. A comparison of the COMELEC'S copy of the election returns for the various precincts in Pasig City and the SoVs per precinct for Pasig City reveals that the votes for senatorial candidates Enrile, Coseteng, Honasan, Fernan, Mitra and Biazon, among others, were illegally increased, while my votes were reduced . . ..

x x x x x x x x x

4. A perusal of the . . . SoVs shows that padded votes were written in the spaces corresponding to certain precincts regardless of the actual votes reflected in the election return concerned;

x x x x x x x x x

In addition, Enrile's votes in 101 precincts exceeded the total number of voters who actually voted in the May 8, 1995 elections in the said precincts . . .;

7. These illegal acts of padding the votes of the senatorial candidates were willfully committed as clearly evidenced by the magnitude of the totals padded in 575 precincts out of a total of 1,263 as appearing in the SoVs, which in the case of Enrile increased. By no means can these illegal acts be attributed to mere randoms "clerical errors" or due to fatigue;

8. In fact, the existence of a conspiracy to pad the votes of various senatorial candidates, particularly that of Enrile, is shown, among other things, by the following:

a) On May 20, 1995, during the national canvassing at the PICC, a letter was sent by one of my staff memebers to . . . Pasig City Treasurer Victor B. Endriga, with the endorsement of Dir. Mejorada of the Comelec, NCR, requesting for certified copies of the Treasurer's copy of the SoVs;

x x x x x x x x x

b) Later we learned that the letter was forwarded from the office of . . . Pasig Treasurer Endriga to respondent Dr. Reynaldo R. San Juan, Campaign Manager of senatorial candidate Enrile of the Justice, Peace and Equality Movement with the acronym JPE (for Juan Ponce Enrile), whose office is located at the JAKA I Building, then national campaign headquarters of Enrile.

c) Respondent Dr. Reynaldo San Juan in fact wrote a note dated May 31, 1995, to Atty. Armando M. Marcelo, a lawyer of Senator Enrile, which reads:

May 31, 1995

Dear Atty. Marcelo,

Please take care of Mr. Sean Olaer's problem with the office of Sen. Nene Pimentel.

Signed

x x x x x x x x x

The import of the message written of the JPE stationary and the fact that . . . Endriga furnished our letter to the campaign manager of Enrile may show the existence of a conspiracy to pad the votes of Enrile as well as to alter the votes of other candidates;

9. The padding of the votes in such magnitude could not have been done without the indispensable cooperation of all the respondents — the Board members, who certified the correctness of the entries made . . . therein and by other persons including . . . Endriga and San Juan.⁸

The complaint was docketed as E.O. 96-1132. All private respondents filed their respective counter-affidavits denying any knowledge of or participation in the recording of vote totals in the CoC and the SoVs that did not match those appearing in the election returns.

On January 8, 1998, the COMELEC promulgated a Resolution dismissing the complaint in this wise:

RESOLVED:

1. To dismiss the complaint of Mr. Aquilino Q. Pimentel, Jr., against respondents Ligaya P. Salayon, Antonio Llorente, Victor Endriga, and Reynaldo San Juan for insufficiency of evidence to establish a probable cause;

2. To dismiss the subject complaint against Ceferino Adamos for being moot and academic by reason of his death and for lack of probable cause; and

3. To give stern warning to Ligaya P. Salayon, Election Officer, Pasig City, and Over-All Chairman of the City Board of Canvassers of Pasig City in the 1995 elections that repetition of the same negligent act in any election exercise will be dealt with severely.⁹

On February 4, 1998, petitioner filed a motion for reconsideration of the foregoing resolution. However, in Minute Resolution No. 98-0819 dated March 10, 1998, the COMELEC denied said motion.

Hence this recourse to Us via the special civil action of certiorari.

Certiorari lies.

First. Private respondents Salayon and Llorente, in their respective counter-affidavits, did not dispute the conflicting figures reflected in the election returns, the CoC, and the SoVs and instead explained that the discrepancy or error was the result of an honest mistake or oversight due to fatigue and that they only based the entries that they made in the CoC, in turn, on the entries made by the subcommittees in the SoVs¹⁰.

There is a limit, We believe, to what can be construed as an honest mistake or oversight due to fatigue, in the performance of official duty. The sheer magnitude of the error, not only in the total number of votes garnered by the aforementioned candidates as reflected in the CoC and the SoVs, which did not tally with that reflected in the election returns, but also in the total number of votes credited for senatorial candidate Enrile which exceeded the total number of voters who actually voted in those precincts during the May 8, 1995 elections, renders the defense of honest mistake or oversight due to fatigue, as incredible and simply unacceptable.

At any rate, We already ruled in Pimentel, Jr. v. Commission on Elections ¹¹ that the merit of defenses such as honest mistake, simple error, good faith, and the mere performance of ministerial duties, as interposed by persons charged with the election offense of tampering, increasing or decreasing of votes received by a candidate in any election. are best ventilated in the trial proper than at the preliminary investigation.

Second. Section 27 (b) of R.A. No. 6646 which reads viz.:

. . . [T]he following shall be guilty of an election offense:

x x x x x x x x x

(b) Any member of the board of election inspectors or board of canvassers who tampers, increases or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes,

penalizes two (2) acts: first, the tampering, increasing, or decreasing of votes received by a candidate in any election; and second, the refusal, after proper verification and hearing to credit the voters or deduct such tampered votes¹². The first obtains in this case.

Petitioner categorically charged private respondents Salayon and Llorente with "illegal acts of padding the votes of the senatorial candidates"¹³ amounting to "violations of the Omnibus Election Code, as amended and Sec. 27 of R.A. 6646"¹⁴. They never denied that the total number of votes for senatorial candidate Enrile as appearing in the CoC and SoVs is significantly and considerably higher by 37,402 and 35,765, respectively, than that appearing in the election returns, while the total number of votes for petitioner was substantially decreased by as much as 4,441.

These circumstances, in themselves, constitute probable cause that justifies the belief that more likely than not, the election offense was committed and was committed by private respondents Salayon and Llorente. Probable cause is based neither on clear and convincing evidence of guilt nor evidence establishing absolute certainty of guilt¹⁵. It is merely based on opinion and reasonable belief, and so it is enough that there exists such state of facts as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so¹⁶. Considering that private respondents Salayon and Llorente, in invoking the defense of honest mistake, oversight due to fatigue, and performance of ministerial duties, virtually admitted the existence of the discrepancies in the total number of votes garnered by petitioner and other senatorial candidates, which discrepancies by no stretch of the imagination could be dismissed as negligible or inconsequential, there is not merely a strong suspicion that they actually committed the election offense with which they are charged. The burden of proof appears to have shifted to them to have shifted to them to prove that the said discrepancies cannot be considered illegal and criminal.

However, We entertain serious reservation as to the existence of probable cause to indict private respondent San Juan. The only evidence against him is a letter which he wrote and signed on a sheet of the official stationery of the Justice, Peace and Equality Movement which conducted the campaign for senatorial candidate Enrile for the May 1995 elections. The letter reads:

May 31-95

Dear Atty. Marcelo,

Please take case of Mr. Sean Olaer's problem with the office of Sen. Nene Pimentel.

(Sgd.) Reynaldo R. San Juan

Significantly, the letter is dated May 31, 1995. Whatever private respondent San Juan meant by asking Atty. Marcelo¹⁷ to "take care of Mr. Sean Olaer's problem with the office of Sen. Nene Pimentel" is not clear. The alleged conspiracy that this letter may, at most, imply, is that private respondent San Juan, Atty. Marcelo and their connections at the COMELEC would be "taking care" of the problem of Olaer regarding acquisition of carbon or certified photocopies of statement of votes per precinct.¹⁸ If at all, the suspicion this letter might have engendered could only be considered a bare¹⁹, not strong²⁰, suspicion which is not a sufficient basis for a finding of probable cause as against respondent San Juan.

WHEREFORE, the instant petition is granted. Respondent COMELEC's Minute Resolution No. 98-0047 dated January 8, 1998 dismissing the petitioner's complaint, docketed therein as E.O. No. 96-1132, and Resolution No. 98-0819 dated March 10, 1998 denying petitioner's motion for reconsideration, are hereby dated ANNULLED and SET ASIDE.

Respondent COMELEC is hereby ordered to file forthwith with the proper Regional Trial Court the necessary criminal information for violation of Section 27(b) of R.A. No. 646, otherwise known as the Electoral Reforms Law of 1987, against private respondents Ligaya Salayon and Antonio Llorente.

SO ORDERED.1âwphi1.nêt

Davide, Jr., C.J., Bellosillo, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.
Melo, Puno and Vitug, JJ., in the result.
Pardo, J., took no part in deliberations. Was Comelec Chairman at the time.

Footnotes

¹ Annex "A" of the Petition dated May 8, 1998, Rollo, pp. 28-34. The Resolution was approved for release by Chairman Bernardo P. Pardo and Commissioners Remedios A. Salazar-Fernando, Manolo B. Gorospe, Julio F. Desamito, Teresita Dy-Liacco Flores and Japal M. Guiani.

² Annex "B", supra, Id. p. 35. The Resolution was approved for release by Chairman Bernardo P. Pardo and Commissioners Manolo B. Gorospe, Julio F. Desamito, Teresita Dy-Liacco Flores, Japal M. Guiani, Evalyn I. Fetalino and Amado M. Calderon.

³ Docketed as E.O. Case No. 96-1132.

⁴ Annex "C", supra, id., p. 36.

⁵ Complaint-Affidavit of petitioner dated September 16, 1996 marked as Annex "E" of the Petition, supra, Rollo, pp. 41-47. The election returns which listed the total votes were attached to said complaint as annexes copies of which, however, do not appear in the Rollo. In any case, respondents did not dispute these figures.

⁶ Certificate of Canvass for Pasig City dated May 11, 1995, p. 2, Rollo, p. 37.

⁷ Ibid.

⁸ Pls. see note no. 5.

⁹ Excerpt from the Minutes of the Regular En Banc Meeting of the Commission on Elections Held on January 8, 1998 marked as Annex "A" of the Petition supra, pp. 6-7, Rollo, pp. 33-34.

¹⁰ Par. 17 of the Counter-Affidavit dated October 5, 1996 of private respondent Ligaya P. Salayon, Rollo, p. 53; Par. 26 of the Counter-Affidavit dated December 5, 1996 of private respondent Antonio M. Llorente, Rollo, p. 65.

¹¹ 289 SCRA 586, 598, 600 (1998).

¹² Id., p. 598.

¹³ Par. 7 of the Affidavit-Complaint dated September 16, 1996 of petitioner, Rollo, p. 45.

¹⁴ Par. 1 of the Affidavit-Complaint, supra, id., p. 41.

¹⁵ Pimentel, Jr. v. Commission on Elections, 289 SCRA 586, 601 (1998).

¹⁶ Pilapil v. Sandiganbayan, 221 SCRA 349, 360 (1993); Olivares v. Sandiganbayan, 248 SCRA 700, 712 (1995).

¹⁷ Atty. Armando M. Marcelo, one of the law partners at what used to be the Ponce Enrile Cayetano Reyes and Manalastas Law Offices.

¹⁸ Pls. see par. 8(a) of the quoted portion of petitioner's Affidavit-Complaint.

¹⁹ Webb v. De Leon, 247 SCRA 652, 676 (1995).

²⁰ Pilapil v. Sandiganbayan, supra; Olivarez v. Sandiganbayan, supra.

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