G.R. No.
168253 March 16, 2007 read and counted by the Board of Election Inspectors (BEI)
MAYOR NOEL E. ROSAL, Petitioner,
vs.
COMMISSION ON ELECTIONS, Second Division, and
MICHAEL VICTOR IMPERIAL, Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 172741 March 16, 2007
MAYOR NOEL E. ROSAL, Petitioner,
vs.
COMMISSION ON ELECTIONS and MICHAEL VICTOR
IMPERIAL, Respondents.
DECISION
CORONA, J.:
Petitioner Noel E. Rosal and private respondent Michael
Victor C. Imperial were candidates for mayor of Legaspi
City in the May 10, 2004 elections. After the counting and
canvassing of votes, petitioner was proclaimed as the duly
elected mayor of Legaspi City, having received 44,792 votes
over private respondent’s 33,747 and thereby winning by a
margin of 11,045 votes.
On May 24, 2004, private respondent instituted a petition
to annul the proclamation,1 assailing the canvass of
election returns in the 520 precincts that had functioned
during the election. On July 6, 2004, the case was
superseded by an election protest filed by private
respondent with the Commission on Elections (Comelec)
contesting the results of the election in all 520 precincts on
the grounds of miscounting, misreading and
misappreciation of votes, substitute voting,
disenfranchisement of voters, substitution and padding of
votes, and other alleged irregularities. The protest was
docketed as EPC No. 2004-61 and raffled to the Second
Division of the Comelec.
After an initial hearing on private respondent’s protest and
petitioner’s answer, the Second Division issued on
November 17, 2004 an order directing the collection of the
ballot boxes from the contested precincts and their delivery
to the Comelec. On December 16, 2004, private respondent
filed a manifestation2 apprising the Second Division of the
fact that out of the 520 ballot boxes retrieved for delivery to
the Comelec, 95 had no plastic seals, 346 had broken
plastic seals and only 79 remained intact with whole
plastic seals and padlocks.
Revision of the contested ballots commenced in mid-
January of 20053 and concluded on February 2, 2005. The
revision report indicated a reduction in petitioner’s vote
count from 44,792 votes to 39,752 and an increase in that
of private respondent from 22,474 to 39,184 votes. Shortly
thereafter, petitioner filed a "motion for technical
examination of contested ballots" on the ground that
thousands of ballots revised by the revision committees
were actually spurious ballots that had been stuffed inside
the ballot boxes sometime after the counting of votes but
before the revision proceedings. The Second Division
denied the motion.
After the revision, the case was set for hearing on February
24, 2005. In that hearing, private respondent manifested
that he would no longer present testimonial evidence and
merely asked for time to pre-mark his documentary
evidence. On March 9, 2005, private respondent filed his
formal offer of evidence, thereby resting his case and
signaling petitioner’s turn to present evidence in his
defense.
On March 17, 2005, the first hearing set for the
presentation of his evidence, petitioner was directed to pre-
mark his exhibits and formalize his intention to have his
witnesses subpoenaed. Accordingly, petitioner filed on April
11, 2005 a motion for issuance of subpoena duces
tecum and ad testificandum to witnesses whose testimonies
would allegedly prove that a significant number of the
revised ballots were not the same ballots that had been
during the election.
In an order dated April 25, 2005,4 the Second Division
ruled that the testimonies of the proposed witnesses were
"unnecessary" inasmuch as the Comelec had the authority
and wherewithal to determine by itself the ballots’
authenticity and, for that reason, denied the motion and
directed petitioner to file forthwith his formal offer of
evidence.
Asserting his right to present evidence in his defense,
petitioner filed on May 6, 2005 a motion for reconsideration
of the April 25, 2005 order. In an order dated May 12,
2005, the Second Division denied the motion.
On June 4, 2005, petitioner filed an Ad Cautela (sic) Offer
of Protestee’s Evidence 5 as a precautionary measure
against the foreclosure of his right to comply with the
Second Division’s April 25, 2005 order. Petitioner’s
evidence included: (1) provincial election supervisor
Serrano’s report that, at the time he took custody of the
ballot boxes, their security seals bore signs of having been
tampered with and (2) the affidavits of 157 BEI
chairpersons who swore to the effect that the
authenticating signatures on certain ballots6 identified and
enumerated in their affidavits (that is, signatures
purporting to be theirs) were clear forgeries.
On June 15, 2005, petitioner filed in this Court a petition
for certiorari7 under Rule 65 of the Rules of Court
(docketed as G.R. No. 1628253) assailing the April 25 and
May 12, 2005 orders of the Comelec’s Second Division for
having been rendered with grave abuse of discretion.
Petitioner complained, in substance, that the Second
Division had, by these orders, denied him due process by
effectively depriving him of a reasonable opportunity to
substantiate with competent evidence his contention that
the revised ballots were not the same ballots cast and
counted during the elections, meaning, the revised ballots
were planted inside the ballot boxes after the counting of
votes (in place of the genuine ones) pursuant to a
fraudulent scheme to manufacture grounds for a
successful election protest.
Meanwhile, the Second Division continued with the
proceedings and, following the submission of the parties’
memoranda, considered EPC No. 2004-61 submitted for
resolution.
In a resolution8 dated January 23, 2006, the Second
Division — then composed of only two sitting members,
namely, Presiding Commissioner Mehol Sadain (now
retired) and Commissioner Florentino Tuason, Jr. —
declared private respondent Imperial the winning candidate
for mayor of Legaspi City and ordered petitioner Rosal to
vacate said office and turn it over peacefully to private
respondent.
Commissioner Sadain, who wrote the main opinion, relied
on the election return count only in precincts the ballot
boxes of which were found to contain fake ballots
notwithstanding petitioner’s assertion that genuine but
otherwise invalid ballots might have been switched with the
ones actually cast in the elections. These numbered a mere
129 precincts. For the rest, he examined, appreciated and
counted the ballots themselves, invalidating in the process
over 14,000 ballots cast for petitioner for having been
written by two persons or for being in groups written by
one hand. Commissioner Sadain ended up crediting private
respondent with 32,660 valid votes over 30,517 for
petitioner.
Commissioner Tuason filed a separate concurring
opinion9 manifesting disagreement with Commissioner
Sadain’s appreciation of certain ballots but arriving at the
same practical result.
On January 30, 2006, petitioner filed a motion for
reconsideration of the Second Division’s resolution. The
motion was denied by the Comelec en banc in a resolution
dated May 29, 2006.10 In due time, petitioner came to this
Court with a petition for certiorari and prohibition assailing
the Comelec en banc resolution. The case was docketed as
G.R. No. 172741 and consolidated with G.R. No. 168253.11
Interlocutory Orders and Rule 65
Before focusing on the merits of this case, the Court sees fit
to address a procedural concern with respect to G.R. No.
168253. Private respondent has persistently thrust upon
us the proposition that the April 25, 2005 order subject of
the petition in G.R. No. 168253, being, as it is, an
interlocutory order rendered by a division of the Comelec,
cannot be assailed by means of a special civil action for
certiorari, as only final orders of the Comelec en banc can
be brought to the Supreme Court by that mode.
We disagree. Section 1, Rule 65 of the Rules of Court,
which governs petitions for certiorari, provides that:
When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of
its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no
appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file
a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law
and justice may require.
xxx xxx xxx
Under the foregoing provision, one may resort to a special
civil action for certiorari under three conditions:
(1) the petition must be directed against a
tribunal, board or officer exercising judicial or
quasi-judicial functions;
(2) the tribunal, board or officer has acted without
or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of
jurisdiction; and
(3) there is no plain, speedy and adequate remedy
in the ordinary course of law.
Other than these three, the Supreme Court’s jurisdiction
over petitions for certiorari has no preset
boundaries. Any act by an officer or entity exercising
judicial or quasi-judicial functions, if done without or in
excess of jurisdiction or with grave abuse of discretion, may
be assailed by means of a special civil action for certiorari
when no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law is available. In other
words, no judicial or quasi-judicial act or order is
excluded a priori from the ambit of the Supreme Court’s
power to correct through the writ of certiorari. It is
therefore incorrect to say that interlocutory orders issued
by a division of the Comelec, or by any judicial or quasi-
judicial body for that matter, are beyond the reach of this
Court.
That the Supreme Court has jurisdiction over petitions for
certiorari assailing interlocutory orders rendered by a
Comelec division from which no recourse to the Comelec en
banc could be had was, in fact, acknowledged in Kho v.
Commission on Elections.12 In that case, Kho, an election
protestant, filed a petition for certiorari in the Supreme
Court questioning the Comelec First Division’s
interlocutory orders relating to the admission of his
opponent’s belatedly filed answer.
One of the issues in Kho was whether the controversial
orders should have first been referred to the Comelec en
banc. Citing Section 5(c), Rule 3 of the Comelec Rules of
Procedure which states that:
[a]ny motion to reconsider a decision, resolution, order or
ruling of a Division shall be resolved by the Commission en
banc except motions on interlocutory orders of the division
which shall be resolved by the division which issued the
order
this Court ruled that the authority to resolve such
incidental matters fell on the division itself. The Court went
on to say that:
where the Commission in division committed grave abuse
of discretion or acted without or in excess of jurisdiction in
issuing interlocutory orders relative to an action pending
before it and the controversy did not fall under any of the
instances mentioned in Section 2, Rule 3 of the COMELEC
Rules of Procedure [which enumerates the cases in which
the Comelec may sit en banc],13 the remedy of the aggrieved
party is not to refer the controversy to the Commission en
banc as this is not permissible under its present rules but
to elevate it to this Court via a petition for certiorari under
Rule 65 of the Rules of Court.14
In fine, Kho tells us that an interlocutory order of a
Comelec division should be challenged at the first instance
through a proper motion, such as a motion for
reconsideration, filed with the division that rendered the
order. If that fails and no other plain, speedy and adequate
remedy (such as recourse to the Comelec en banc) is
available, the party aggrieved by the interlocutory order
may elevate the matter to the Supreme Court by means of a
petition for certiorari on the ground that the order was
issued without or in excess of jurisdiction or with grave
abuse of discretion.
Private respondent asserts, however, that Kho has been
superseded by the more recent case of Repol v. Commission
on Elections15 from which he cites the dictum that:
[t]he Supreme Court has no power to review via certiorari
an interlocutory order or even a final resolution of a
Division of the COMELEC. Failure to abide by this
procedural requirement constitutes a ground for dismissal
of the action.16
Again, we disagree.
There is no contradiction between Kho and Repol that calls
for the application of the doctrine that a later judgment
supersedes a prior one in case of inconsistency. In Repol,
the petitioner went directly to the Supreme Court from an
interlocutory order of the Comelec First Division without
first filing a motion for reconsideration with said division.
That was properly a cause for concern inasmuch as failure
to move for reconsideration of the act or order before
challenging it through a petition for certiorari often
constitutes a ground for dismissal for non-compliance with
the condition in Rule 65: that resort to certiorari should be
justified by the unavailability of an appeal or any other
plain, speedy and adequate remedy in the ordinary course
of law. In the end, however, the Court in Repol applied the
ruling in ABS-CBN Broadcasting Corporation v.
COMELEC17 that an exception to the procedural
requirement of filing a motion for reconsideration was
warranted since there was hardly enough time to move for
reconsideration and obtain a swift resolution in time for the
impending elections.
A sensible reading of our decision shows that Repol was not
a negation or repudiation of this Court’s jurisdiction over
petitions for certiorari from interlocutory orders rendered
by a Comelec division. Had it been so, then we would have
dismissed the petition on the ground that it was beyond
our jurisdiction. Rather, this Court in Repol merely applied
the rule that a petition for certiorari must be justified by
the absence of a plain, speedy and adequate remedy in the
ordinary course of law; we said that the rule had been
satisfied inasmuch as a motion for reconsideration was not
a plain, speedy and adequate remedy under the
circumstances.
Repol therefore merely serves as a reminder that, in a
petition for certiorari from an interlocutory order, the
petitioner bears the burden of showing that the remedy of
appeal taken after a judgment or final order (as opposed to
an interlocutory one) has been rendered will not afford
adequate and expeditious relief,18 as it is often the better
practice for a party aggrieved by an interlocutory order to
continue with the case in due course and, in the event of
an adverse decision, appeal from it and include the
interlocutory order as one of the errors to be corrected by
the reviewing body.
In this instance, petitioner filed a motion for
reconsideration of the Second Division’s order. When that
failed, no other speedy and adequate remedy against the
unpardonable vices attending the Second Division’s
treatment of the election protest was left to him except
recourse to this Court under Rule 65. Under the
circumstances, he was without the shadow of a doubt
justified in taking it.
Election Protest and Ballots As Evidence
It will be recalled that the Second Division had been
apprised of the ballot boxes’ impaired condition even prior
to the commencement of the revision proceedings. This
notwithstanding, it brushed aside petitioner’s protestations
that he was the victim of an ingenious post-election fraud
involving infiltration of the ballot boxes and the clever
switching of ballots actually cast with invalid ones to
ensure his defeat in the election protest. The division ruled
that:
mere allegations cannot suffice to convince this
Commission that switching of ballots has occurred, absent
any positive and direct evidence in the form of fake ballots
themselves being found among genuine ballots. Regardless
of any technical examination that may have been
conducted or testimonial evidence presented, as
emphatically moved by the protestee but denied by the
Commission, the best proof of the alleged substitution of
ballots is the ballots themselves. And the process by which
this proof is established is by way of an evaluation of the
ballots by the Commission itself during its appreciation of
the revised ballots.19
On the basis of this reasoning, the Second Division
proceeded with an appreciation and recount of the ballots
from over 300 precincts and set aside the physical count of
the revised ballots in favor of the election returns only in
precincts the ballot boxes of which were found to contain
spurious ballots.
In view of the facts of this case, the Court cannot but hold
that the Second Division adopted a manifestly
unreasonable procedure, one totally unfit to address the
single most vital threshold question in an election protest,
namely, whether the ballots found in the ballot boxes
during the revision proceedings were the same ballots that
were cast and counted in the elections.
The purpose of an election protest is to ascertain whether
the candidate proclaimed elected by the board of
canvassers is the true and lawful choice of the
electorate.20 Such a proceeding is usually instituted on the
theory that the election returns, which are deemed prima
facie to be true reports of how the electorate voted on
election day21 and which serve as the basis for proclaiming
the winning candidate, do not accurately reflect the true
will of the voters due to alleged irregularities that attended
the counting of ballots. In a protest prosecuted on such a
theory, the protestant ordinarily prays that the official
count as reflected in the election returns be set aside in
favor of a revision and recount of the ballots, the results of
which should be made to prevail over those reflected in the
returns pursuant to the doctrine that "in an election
contest where what is involved is the number of votes of
each candidate, the best and most conclusive evidence are
the ballots themselves."22
It should never be forgotten, though, that the superior
status of the ballots as evidence of how the electorate
voted presupposes that these were the very same ballots
actually cast and counted in the elections. Thus, it has
been held that before the ballots found in a box can be
used to set aside the returns, the court (or the Comelec as
the case may be) must be sure that it has before it the
same ballots deposited by the voters.23
Procedure to Address Post-Election Fraud
How, then, can one establish that the ballots sought to be
revised are the same ballots cast by the voters during the
elections? Obviously, the proof cannot be supplied by an
examination of the ballots themselves, their identity being
the very fact in dispute. Answers may be found in
abundance in the early case of Cailles v. Gomez24 in which
the following doctrines were quoted with favor:
In an election contest the ballots cast by the voters is the
primary and best evidence of the intention of the voters,
but the burden of proof is on the contestor to show that the
ballots have been preserved in the manner provided by law
and have not been tampered with, and the fact that the
ballots have been in the custody of the proper officers from
the time of the canvass to the time of the recount is only
prima facie and not conclusive proof of their integrity.
In an election contest the rule that as between the ballots
and the canvass of them, the ballots control, has no
application where the ballots have been tampered with. The
court must be sure that it has before it the identical and
unaltered ballots deposited by the voters before they
become controlling as against the certificate of the election
officers of the result of the canvass.
xxx xxx xxx
Where an official count has been made, it is better evidence
of who was elected than the ballots, unless he who
discredits the count shows affirmatively that the ballots
have been preserved with a care which precludes the
opportunity of tampering and all suspicion of change,
abstraction or substitution.
The law is well settled that the burden of proof is on the
plaintiff, when he seeks to introduce the ballots to overturn
the official count, to show affirmatively that the ballots
have not been tampered with, and that they are the
genuine ballots cast by the voters.
In an action to contest the right of a party to an office to
which he has been declared elected, the returns of the
election boards should be received as prima facie true. In
order to overcome this evidence by a recount of the ballots
cast at the election, the contestant must affirmatively prove
that the ballots have not been tampered with, and that they
remained in the same condition as they were when
delivered to the proper custody by the judges of election. If
it appear to the satisfaction of the court that the ballots
have not been tampered with, it should adopt the result as
shown by the recount, and not as returned by the election
board.
xxx xxx xxx
The principles of law and the rules of evidence governing
cases such as this have been so often declared that a
review of the many authorities is unnecessary. Those
curious or interested in pursuing the subject will find in
the reporter's notes, preceding, many instructive cases
collated by the industry of counsel. Suffice it here to say
that, while the ballots are the best evidence of the manner
in which the electors have voted, being silent witnesses
which can neither err nor lie, they are the best evidence
only when their integrity can be satisfactorily established.
One who relies, therefore, upon overcoming the prima facie
correctness of the official canvass by a resort to the ballots
must first show that the ballots, as presented to the court,
are intact and genuine. Where a mode of preservation is
enjoined by the statute proof must be made of a
substantial compliance with the requirements of that
mode. But such requirements are construed as directory
merely, the object looked to being the preservation inviolate
of the ballots. If this is established it would be manifestly
unjust to reject them merely because the precise mode of
reaching it had not been followed.
So, too, when a substantial compliance with the provisions
of the statute has been shown, the burden of proof shifts to
the contestee of establishing that, notwithstanding this
compliance, the ballots have in fact been tampered with, or
that they have been exposed under such circumstances
that a violation of them might have taken place. But this
proof is not made by a naked showing that it was possible
for one to have molested them. The law cannot guard
against a mere possibility, and no judgment of any of its
courts is ever rendered upon one.
The probative value of the result of the return made by the
board of inspectors is a question already settled at various
times by the courts of the United States. In the case of
Oakes vs. Finlay, the following doctrine was laid:
"The returns of an election board, when legally and
properly authenticated, are not only conclusive upon the
board of canvassing officers, but are also prima facie
evidence of the number of votes cast, in a proceeding to
contest the election; and the burden of proof is upon the
person who assails the correctness of these returns."
In the case of Stafford vs. Sheppard, the court said:
"Certificates of the result of an election, made by the
commissioners at the precincts, are prima facie evidence of
the result of the election. The ballots, if identified as the
same cast, are primary and higher evidence; but, in order
to continue the ballots as controlling evidence, it must
appear that they have been preserved in the manner and
by the officers prescribed by the statute, and that, while in
such custody, they have not been changed or tampered
with." (internal citations omitted)25
We summarize the foregoing doctrines: (1) the ballots
cannot be used to overturn the official count as reflected in
the election returns unless it is first shown affirmatively
that the ballots have been preserved with a care which
precludes the opportunity of tampering and all suspicion of
change, abstraction or substitution; (2) the burden of
proving that the integrity of the ballots has been preserved
in such a manner is on the protestant; (3) where a mode of
preserving the ballots is enjoined by law, proof must be
made of such substantial compliance with the
requirements of that mode as would provide assurance that
the ballots have been kept inviolate notwithstanding slight
deviations from the precise mode of achieving that end; (4)
it is only when the protestant has shown substantial
compliance with the provisions of law on the preservation
of ballots that the burden of proving actual tampering or
the likelihood thereof shifts to the protestee and (5) only if
it appears to the satisfaction of the court or Comelec that
the integrity of the ballots has been preserved should it
adopt the result as shown by the recount and not as
reflected in the election returns.
Our election laws are not lacking in provisions for the
safekeeping and preservation of the ballots. Among these
are Sections 160, 217, 219 and 220 of the Omnibus
Election Code26 which provide:
SECTION 160. Ballot boxes. — (a) There shall be in each
polling place on the day of the voting a ballot box one side
of which shall be transparent which shall be set in a
manner visible to the voting public containing two
compartments, namely, the compartment for valid ballots
which is indicated by an interior cover painted white and
the compartment for spoiled ballots which is indicated by
an interior cover painted red. The boxes shall be uniform
throughout the Philippines and shall be solidly constructed
and shall be closed with three different locks as well as
three numbered security locks and such other safety
devices as the Commission may prescribe in such a way
that they can not be opened except by means of three
distinct keys and by destroying such safety devices.
(b) In case of the destruction or disappearance of any ballot
box on election day, the board of election inspectors shall
immediately report it to the city or municipal treasurer who
shall furnish another box or receptacle as equally adequate
as possible. The election registrar shall report the incident
and the delivery of a new ballot box by the fastest means of
communication on the same day to the Commission and to
the provincial election supervisor.
SECTION 217. Delivery of the ballot boxes, keys and
election supplies and documents. — Upon the
termination of the counting of votes, the board of election
inspectors shall place in the compartment for valid ballots,
the envelopes for used ballots hereinbefore referred to, the
unused ballots, the tally board or sheet, a copy of the
election returns, and the minutes of its proceedings, and
then shall lock the ballot box with three padlocks and such
safety devices as the Commission may prescribe.
Immediately after the box is locked, the three keys of the
padlocks shall be placed in three separate envelopes and
shall be sealed and signed by all the members of the board
of election inspectors. The authorized representatives of the
Commission shall forthwith take delivery of said envelopes,
signing a receipt therefor, and deliver without delay one
envelope to the provincial treasurer, another to the
provincial fiscal and the other to the provincial election
supervisor.
The ballot box, all supplies of the board of election
inspectors and all pertinent papers and documents shall
immediately be delivered by the board of election inspectors
and the watchers to the city or municipal treasurer who
shall keep his office open all night on the day of election if
necessary for this purpose, and shall provide the necessary
facilities for said delivery at the expense of the city or
municipality. The book of voters shall be returned to the
election registrar who shall keep it under his custody. The
treasurer and the election registrar, as the case may be,
shall on the day after the election require the members of
the board of election inspectors who failed to send the
objects referred to herein to deliver the same to him
immediately and acknowledge receipt thereof in detail.
SECTION 219. Preservation of the ballot boxes, their
keys and disposition of their contents. — (a) The
provincial election supervisor, the provincial treasurer and
the provincial fiscal shall keep the envelope containing the
keys in their possession intact during the period of three
months following the election. Upon the lapse of this
period, unless the Commission has ordered otherwise, the
provincial election supervisor and the provincial fiscal shall
deliver to the provincial treasurer the envelope containing
the keys under their custody.
(b) The city and municipal treasurer shall keep
the ballot boxes under their responsibility for
three months and stored unopened in a secure
place, unless the Commission orders otherwise
whenever said ballot boxes are needed in any
political exercise which might be called within the
said period, provided these are not involved in any
election contest or official investigation, or the
Commission or other competent authority shall
demand them sooner or shall order their
preservation for a longer time in connection with
any pending contest or investigation. However,
upon showing by any candidate that the boxes
will be in danger of being violated if kept in the
possession of such officials, the Commission may
order them kept by any other official whom it may
designate. Upon the lapse of said time and if there
should be no order to the contrary, the
Commission may authorize the city and municipal
treasurer in the presence of its representative to
open the boxes and burn their contents, except
the copy of the minutes of the voting and the
election returns deposited therein which they
shall take and keep.
(c) In case of calamity or fortuitous event such as
fire, flood, storm, or other similar calamities
which may actually cause damage to the ballot
boxes and/or their contents, the Commission may
authorize the opening of said ballot boxes to
salvage the ballots and other contents by placing
them in other ballot boxes, taking such other
precautionary measures as may be necessary to
preserve such documents.
SECTION 220. Documents and articles omitted or
erroneously placed inside the ballot box. — If after the
delivery of the keys of the ballot box to the proper
authorities, the board of election inspectors shall discover
that some documents or articles required to be placed in
the ballot box were not placed therein, the board of election
inspectors, instead of opening the ballot box in order to
place therein said documents or articles, shall deliver the
same to the Commission or its duly authorized
representatives. In no instance shall the ballot box be
reopened to place therein or take out therefrom any
document or article except to retrieve copies of the election
returns which will be needed in any canvass and in such
excepted instances, the members of the board of election
inspectors and watchers of the candidates shall be notified
of the time and place of the opening of said ballot box:
Provided, however, That if there are other copies of the
election returns outside of the ballot box which can be
used in canvass, such copies of the election returns shall
be used in said canvass and the opening of the ballot box
to retrieve copies of the election returns placed therein
shall then be dispensed with.
Additional safeguards were provided for in Comelec
Resolution No. 6667 (General Instructions for the Boards of
Election Inspectors on the Casting and Counting of Votes
in Connection with the May 10, 2004 National and Local
Elections) which laid down the following directives:
Section 50. Disposition of ballot boxes, keys, election
returns and other documents. - Upon the termination of the
counting of votes and the announcement of the results of
the election in the precinct, the BEI shall:
a. Place the following documents inside the
compartment of the ballot box for valid ballots.
1. Envelope containing used/counted
official ballots;
2. Envelope containing
excess/marked/spoiled/half of torn
unused official ballots;
3. Envelope containing the copy of the
election returns for the ballot box;
4. Envelope containing one copy of the
Minutes of Voting and Counting of Votes
(copy for the ballot box);
5. Tally Board; and
6. Stubs of used pads of official ballots.
b. Close the inner compartments of the ballot box,
lock them with one (1) self-locking fixed-length
seal and then lock the outer cover with the (3)
padlocks and one (1) self-locking fixed-length seal.
The three keys to the padlocks shall be placed in
separate envelopes which shall be sealed and
signed by all members of the BEI;
c. Deliver the ballot box to the city or municipal
treasurer. In case the ballot box delivered by the
BEI was not locked and/or sealed, the treasurer
shall lock and/or seal the ballot box. The
treasurer shall include such fact, including the
serial number of the self-locking fixed-length seal
used, in his report to the Commission;
d. Deliver to the Election Officer:
xxx xxx xxx
5. Three (3) envelopes, each containing a key to a
padlock of the ballot box which shall be delivered,
under proper receipt, by the election officer to the
provincial election supervisor, the provincial
prosecutor and the provincial treasurer. In the
case of cities whose voters do not vote for
provincial officials, and municipalities in the
National Capital Region, the election officer shall
retain one envelope and distribute the two other
envelopes to the city/municipal prosecutor and
city/municipal treasurer, as the case may be.
xxx xxx xxx
The ballot box, all supplies of the BEI and all pertinent
papers and documents shall immediately be delivered by
the BEI, accompanied by watchers, to the city/municipal
treasurer. For this purpose, the city/municipal treasurer
shall, if necessary, keep his office open all night on the day
of the election and shall provide the necessary facilities for
said delivery at the expense of the city/municipality.
Section 52. Omission or erroneous inclusion of documents
in ballot box. - If after locking the ballot box, the BEI
discovers that some documents or articles required to be
placed in the ballot box were not placed therein, the BEI,
instead of opening the ballot box in order to place therein
said documents or articles, shall deliver the same to the
election officer. In no instance shall the ballot box be
reopened to place therein or to take out therefrom any
document or article except in proper cases and with prior
written authority of the Commission, or its duly authorized
official, to retrieve copies of the election returns which will
be needed in any canvass. In such instance, the members
of the BEI and the watchers shall be notified of the time
and place of the opening of said ballot box. However, if
there are other copies of the election returns outside of the
ballot box which can be used in the canvass, such copies of
the election returns shall be used in said canvass and the
opening of the ballot box to retrieve copies of the election
returns placed therein shall then be dispensed with.
In case the BEI fails to place the envelope containing the
counted ballots inside the ballot box, the election officer
shall, with notice to parties, deposit said envelopes in a
separate ballot box which shall be properly sealed,
padlocked and stored in a safe place in his office. Said
ballot boxes shall remain sealed unless otherwise ordered
by the Commission.
As made abundantly clear by the foregoing provisions, the
mode of preserving the ballots in this jurisdiction is for
these to be stored safely in sealed and padlocked ballot
boxes which, once closed, shall remain unopened unless
otherwise ordered by the Comelec in cases allowed by law.
The integrity of the ballots and therefore their probative
value, as evidence of the voters’ will, are contingent on the
integrity of the ballot boxes in which they were stored.
Thus, it is incumbent on the protestant to prove, at the
very least, that the safety features meant to preserve the
integrity of the ballot boxes and their contents were
installed and that these remained in place up to the time of
their delivery to the Comelec for the revision proceedings. If
such substantial compliance with these safety measures is
shown as would preclude a reasonable opportunity of
tampering with the ballot boxes’ contents, the burden
shifts to the protestee to prove that actual tampering took
place. If the protestee fails to discharge this burden, the
court or the Comelec, as the case may be, may proceed on
the assumption that the ballots have retained their
integrity and still constitute the best evidence of the
election results. However, where a ballot box is found in
such a condition as would raise a reasonable suspicion
that unauthorized persons could have gained unlawful
access to its contents, no evidentiary value can be given to
the ballots in it and the official count reflected in the
election return must be upheld as the better and more
reliable account of how and for whom the electorate voted.
The procedure adopted by the Second Division was a
complete inverse of the one outlined above and was
contrary to reason. There was complete arbitrariness on its
part.
First, there was no indication at all that it ever considered
the condition of the ballot boxes at the time they were
delivered to the Comelec for revision. We find this rather
puzzling, considering that it had been apprised of such
information even before revision and even its own Rules of
Procedure on election protests requires the revision
committee to "make a statement of the condition in which
the ballot boxes and their contents were found upon the
opening of the same"27 — in recognition of the vital
significance of such facts.
Second, it placed the burden of proving actual tampering of
the ballots on petitioner herein (the protestee below)
notwithstanding private respondent’s previous
manifestation that most of the ballot boxes bore "overt
signs of tampering"28 and only 79 ballot boxes were found
intact.
Third, instead of diligently examining whether the ballot G.R. No. 201350
boxes were preserved with such care as to preclude any
reasonable opportunity for tampering with their contents,
ELMER E. PANOTES, Petitioner,
the Second Division made the probative value of the revised
vs.
ballots dependent solely on whether spurious ballots were
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL
found among them. It failed to recognize that, in view of
and LIWAYWAYVINZONS-CHATO, Respondents.
reports that the ballot boxes had been tampered with and
allegations that their contents had been switched with
genuine but invalid ballots, the question of whether the DECISION
revised ballots could be relied on as the same ones cast
and counted during the elections could not obviously be
PERLAS -BERNABE, J.:
settled by an examination of the ballots themselves.
Clearly, the time when these were deposited in the ballot
boxes — a detail of utmost importance — could not Before us are consolidated cases involving the use of the
possibly have been determined by that means. picture images of ballots as the equivalent of the original
paper ballots for purposes of determining the true will of
the electorate in the Second Legislative District of
These errors on the part of the Second Division were
Camarines Norte in the May 10, 2010 elections, which was
infinitely far from harmless; the proper legal procedure
"the maiden run for full automation,"1 as authorized by
could have made a substantial difference in the result of
Republic Act (R.A.) No. 93692 amending R.A. No. 8436 that
the election protest and most certainly could have led to a
called for the adoption of an automated election system in
better approximation of the true will of the electorate. This,
national and local elections.
in the final analysis, is what election protests are all about.

The Factual Antecedents

Under the circumstances, the question as to who between
the parties was duly elected to the office of mayor cannot
be settled without further proceedings in the Comelec. In Liwayway Vinzons-Chato (Chato) renewed her bid in the
keeping with the precepts laid down in this decision, the May 10, 2010 elections as representative of the Second
Comelec must first ascertain, after due hearing, whether it Legislative District of Camarines Norte, composed of the
has before it the same ballots cast and counted in the seven (7) Municipalities of Daet, Vinzons, Basud, Mercedes,
elections. For this purpose, it must determine: (1) which Talisay, San Vicente, and San Lorenzo, with a total of 205
ballot boxes sufficiently retained their integrity as to justify clustered precincts. She lost to Elmer E. Panotes (Panotes)
the conclusion that the ballots contained therein could be who was proclaimed the winner on May 12, 2010 having
relied on as better evidence than the election returns and garnered a total of 51,707 votes as against Chato's 47,822
(2) which ballot boxes were in such a condition as would votes, or a plurality of 3,885 votes,3 summarized in the
afford a reasonable opportunity for unauthorized persons petition4 as follows:
to gain unlawful access to their contents. In the latter case,
the ballots must be held to have lost all probative value
1âwphi1
and cannot be used to set aside the official count reflected
in the election returns. No. of votes for No. of votes for
Municipality Panotes Chato
WHEREFORE, the petitions are GRANTED. The April 25 Daet 18,085 15,911
and May 12, 2005 orders and the January 23, 2006
resolution of the Commission on Elections Second Division Vinzons 8,107 6,713
and the May 29, 2006 resolution of the Commission on
Elections en banc in EPC No. 2004-61 are hereby Basud 7,879 6,527
declared null and void. The Commission on Elections is
Mercedes 7,739 9,333
hereby DIRECTED to determine, with utmost dispatch and
all due regard for the parties’ right to be heard, the true Talisay 5,015 4,190
result of the 2004 elections for mayor of Legaspi City. To
this end, it shall: San Vicente 2,359 2,453

San Lorenzo 2,520 2,695

(1) identify the precincts the ballot boxes of which
were found intact with complete and undamaged TOTAL
seals and padlocks or were otherwise preserved
with such substantial compliance with statutory
safety measures as to preclude a reasonable
opportunity for tampering with their contents. The
ballots from these precincts shall be deemed to
have retained their integrity in the absence of
evidence to the contrary and the Commission on
Elections may consider them in the recount.
51,707 47,822
On May 24, 2010, Chato filed an electoral protest before
the House of Representatives Electoral Tribunal (HRET),
which was docketed as HRET Case No. 10-040, assailing
the results in all the 160 clustered precincts in four (4)
municipalities, namely: Daet, Vinzons, Basud and
Mercedes.5 No counter-protest was interposed by Panotes.

(2) ascertain the precincts the ballot boxes of
which were found in such a condition as would
afford a reasonable opportunity for unlawful
access to their contents. The Commission on
Elections shall exclude from the recount the
ballots from these precincts and shall rely instead
on the official count stated in the election returns.
The status quo ante order issued by this Court on June 7,
2006 is, for all intents and purposes consistent with this
decision, hereby MAINTAINED.
Pursuant to Rule 37 of the 2011 Rules of the HRET, Chato
designated forty (40) pilot clustered precincts, equivalent to
25% of the total number of protested clustered precincts, in
which revision of ballots shall be conducted. The initial
revision of ballots, conducted on March 21 - 24, 2011,
showed a substantial discrepancy between the votes of the
parties per physical count vis-a-vis their votes per election
returns in the following precincts of the Municipalities of
Basud and Daet:6
Based

G.R. No. 199149 January 22, 2013

Votes for Chato Votes for Panotes
Clustered
LIWAYWAY VINZONS-CHATO,
PrecinctPetitioner, Per Per Gain Per Per
vs. No. Election Physical or Election Physical
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL Returns Count -Loss Returns Count
and ELMER E. PANOTES, Respondents.
6 166 183 17 268 164

x-----------------------x 7 119 134 15 206 85

8 70 81 11 239 133
87 105 18 193 100 b. Some of the Minutes of Voting and Election
- 93
Returns were MISSING and only the ballots were
148 191 43 239 138 found inside the ballot box.
- 101

233 261 28 399 251 - 148

c. The ballots were unnecessarily folded and/or
263 287 24 366 214 crumpled in the clustered precincts where the
- 152
votes of (Panotes) were substantially reduced.

Daet Consequently, in its Resolution9 No. 11-208, the HRET

directed the copying of the picture image files of ballots
relative to the protest, which was scheduled to commence
Votes for Chato Votes for Panotes on April 25, 2011 and everyday thereafter until
Per Per Gain Per Per completion.
Gain Chato, however, moved for the cancellation
10 11

Election Physical or Election Physical of the decryption

or and copying of ballot images arguing inter
Returns Count -Loss Returns Count alia that there was no legal basis therefor and that the
-Loss
HRET had not issued any guidelines governing the exercise
269 295 26 354 157 thereof.- 197

243 275 32 363 2 - 361

Notwithstanding, the decryption and copying proceeded as
183 202 19 269 36 scheduled.
- 233

281 318 37 440 334 - 106 filed an Urgent Motion to Prohibit the Use by
Chato then
223 261 38 341 227 Protestee of the Decrypted and Copied Ballot Images in the
- 114
Instant Case12 reiterating the lack of legal basis for the
202 229 27 391 343 decryption
- 48 and copying of ballot images inasmuch as no
preliminary hearing had been conducted showing that the
258 284 26 407 305 integrity
- 102
of the ballots and ballot boxes was not preserved.
She cited Section 10(d) of the HRET Guidelines on the
243 267 24 521 511 Revision- 10
of Ballots, which reads:
259 293 34 373 96 - 277
(d) When it has been shown, in a preliminary hearing set
226 260 34 348 54 by the -parties
294 or by the Tribunal, that the integrity of the
ballots and ballot boxes used in the May 10, 2010 elections
294 313 19 404 357 was not- 47
preserved, as when there is proof of tampering or
substitutions, the Tribunal shall direct the printing of the
287 309 22 399 320 - 79
picture images of the ballots of the subject precinct stored
153 182 29 252 77 in the - data
175 storage device for the same precinct. The
Tribunal shall provide a non-partisan technical person who
shall conduct the necessary authentication process to
On March 24, 2011, Panotes lost no time in moving7 for the ensure that the data or image stored is genuine and not a
suspension of the proceedings in the case, and praying that substitute. It is only upon such determination that the
a preliminary hearing be set in order to determine first the printed picture image can be used for the revision, (as
integrity of the ballots and the ballot boxes used in the amended per Resolution of February 10, 2011).
elections. He further urged that, should it be shown during
such hearing that the ballots and ballot boxes were not Moreover, Chato alleged that the ballot images were taken
preserved, the HRET should direct the printing of the from polluted Compact Flash (CF) cards. Atty. Anne A.
picture images of the ballots of the questioned precincts Romero-Cortez (Atty. Cortez), the Camarines Norte
stored in the data storage device for said precincts. Provincial Elections Supervisor, was said to have admitted
during canvassing proceedings that the CF cards for the
The motion was prompted by certain irregularities8 in the Municipalities of Labo, Vinzons and Basud were defective
condition of the ballot boxes subject of the revision, which and had to be replaced. The pertinent portion of the
Panotes described as follows: Transcript of Stenographic Notes (TSN) taken during the
canvassing proceedings for President and Vice-President
held on June 2, 2010 is reproduced hereunder:
Outer condition:

REP. VINZONS-CHATO: Yes, I requested the presence of

a. The top cover of the ballot box is loose and can
be lifted, so the election documents – e.g. ballots,
minutes of voting, election returns – can be taken
out.
b. In some ballot boxes, when the key was
inserted into the padlock, the upper portion of the
lock disconnected from its body, which means
that the lock had been previously tampered with.
c. In the municipalities where Petitioner (Panotes)
was able to seal the ballot boxes with packing
tape, this tape seal was broken/cut/sliced, which
means that the ballot boxes had been opened
prior to the initial revision.
d. Some of the self-locking security seal was not
properly attached.
Inner condition:
the other two members because the information that I
gathered would be that there was a time log of about six
hours where you would stop the canvassing, and the
information that we got from our lawyers there was that
there were certain cards that had no memory and had to be
reconfigured from some precincts, and that, in the
meantime, you stopped the canvassing and resumed after
six hours.
ATTY. ROMERO-CORTEZ: This is what happened. Because
of the municipalities of Labo, Vinzons, and Basud, there
were CF cards that had to be replaced because they were
defective.
REP. VINZONS-CHATO: But, that was after the voting had
closed, right? The voting had closed and those cards were
defective and you had to replace them.
ATTY. ROMERO-CORTEZ: To my recollection, Your Honor,
that was during May 10.13

a. The contents of the ballot box – e.g. ballots and
the documents – were in total disarray, which
means that it was tampered with.
Panotes, on the other hand, stressed in his Opposition14 to
the foregoing motion that the decryption and copying of the
ballot images was at the behest of the HRET itself, acting
through Atty. Marie Grace T. Javier-Ibay, who formally
requested on February 10, 2011 the copying of the picture
image files of ballots and election returns in 13 election
protests pending before it. Should he then decide to use the
decrypted and copied ballot images, there is nothing in the
HRET rules that prohibit the same.
With respect to the allegation that certain defective CF
cards were replaced, Panotes argued15 that it was during
the election day, May 10, 2010, that the CF cards were
found to be not working so they had to be re-configured.
Consequently, the voting in some precincts in the
Municipalities of Labo, Vinzons and Basud started late, but
the voting period was extended accordingly. For this
reason, the canvassing before the Provincial Board of
Canvassers was halted in order to wait for the transmission
of the results from the Municipal Board of Canvassers,
which could not be done until each and every clustered
precinct was duly accounted for.
The case was subsequently set for preliminary hearing on
May 27, 2011 in order to determine the integrity of the CF
cards used in the questioned elections.16 In said hearing,
Chato presented the following witnesses: (1) Oscar
Villafuerte, Vice-Chairman of the Provincial Board of
Canvassers of Camarines Norte; (2) Reynaldo Mago, a
media practitioner; and (3) Angel Abria, an Information
Technology (IT) expert.17
On June 8, 2011, the HRET issued the assailed
Resolution18 No. 11-321 denying Chato's Urgent Motion to
Prohibit the Use by Protestee of the Decrypted and Copied
Ballot Images in the Instant Case on the ground that she
failed to show proof that the CF cards used in the twenty
(20) precincts in the Municipalities of Basud and Daet with
substantial variances were not preserved or were violated.
The Tribunal stressed that, since Atty. Cortez was not
presented in court to clarify the matter of the alleged
replacement of CF cards, it remained unclear whether the
replacement was done before or after the elections, and
which precincts were involved. Moreover, the testimonies of
the witnesses that were actually presented were found to
be irrelevant and immaterial.
Significantly, the HRET declared that, although the actual
ballots used in the May 10, 2010 elections are the best
evidence of the will of the voters, the picture images of the
ballots are regarded as the equivalent of the original, citing
Rule 4 of the Rules on Electronic Evidence, which reads:
Sec. 1. Original of an electronic document. – An
electronic document shall be regarded as the
equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable
by sight or other means, shown to reflect the data
accurately.
Sec. 2. Copies as equivalent of the originals. –
When a document is in two or more copies
executed at or about the same time with identical
contents, or is a counterpart produced by the
same impression as the original, or from the same
matrix, or by mechanical or electronic re-
recording, or by chemical reproduction, or by
other equivalent techniques which accurately
reproduces the original, such copies or duplicates
shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall
not be admissible to the same extent as the original if:
(a) a genuine question is raised as to the
authenticity of the original; or
(b) in the circumstances it would be unjust or
inequitable to admit the copy in lieu of the
original.
Aggrieved, Chato filed a Motion for Reconsideration19,
which was denied in the Resolution20 No. 11-487 dated
September 15, 2011. The HRET categorically held that:
x x x (T)he votes determined after the revision in the 20
precincts in Basud and Daet, which yielded reversal of
votes, cannot be relied upon, as they do not reflect the true
will of the electorate. Hence, the Tribunal has to rely on
what is reflected in the election returns and/or statement
of votes by precinct the same being the best evidence of the
results of the election in said precincts in lieu of the altered
ballots.
The Issues
G.R. No. 199149
In this petition for certiorari and prohibition with prayer for
a temporary restraining order and/or writ of prohibitory
injunction, Chato claims that the HRET committed grave
abuse of discretion amounting to lack or excess of
jurisdiction in issuing Resolution No. 11-321 dated June 8,
2011 and Resolution No. 11-487 dated September 15,
2011. Her petition is anchored on the following grounds:
I.
THE HON. PUBLIC RESPONDENT HRET IN
RESOLUTION NO. 11-321 (DATED 08 JUNE
2011) REGARDED THE PICTURE IMAGES OF
THE BALLOTS AS THE EQUIVALENT OF THE
ORIGINAL, AND USED THE PICTURE IMAGES OF
THE BALLOTS IN ITS SUBSEQUENT
RESOLUTION NO. 11-487 (DATED 15
SEPTEMBER 2011) – DESPITE THE FACT THAT
UNDER REPUBLIC ACT NO. 9369 THE PICTURE
IMAGES OF THE BALLOTS ARE NOT THE
"OFFICIAL BALLOTS" SINCE THE AUTOMATED
ELECTION SYSTEM (AES) USED DURING THE
MAY 2010 ELECTIONS WAS PAPER BASED.
II.
THE HON. PUBLIC RESPONDENT HRET IN
RESOLUTION NO. 11-321 (DATED 08 JUNE
2011) REGARDED THE PICTURE IMAGES OF
THE BALLOTS AS THE EQUIVALENT OF THE
ORIGINAL, AND USED THE PICTURE IMAGES OF
THE BALLOTS IN ITS SUBSEQUENT
RESOLUTION NO. 11-487 (DATED 15
SEPTEMBER 2011) – EVEN IF THE PICTURE
IMAGES OF THE BALLOTS CANNOT BE
REGARDED AS THE EQUIVALENT OF THE
ORIGINAL PAPER BALLOTS UNDER THE RULES
ON ELECTRONIC EVIDENCE. IN THE FIRST
PLACE, THE RULES ON ELECTRONIC EVIDENCE
DO NOT EVEN APPLY TO THE PICTURE IMAGES
OF THE BALLOTS.
III.
THE HON. PUBLIC RESPONDENT HRET IN
RESOLUTION NO. 11-321 (DATED 08 JUNE
2011) REGARDED THE PICTURE IMAGES OF
THE BALLOTS AS THE EQUIVALENT OF THE
ORIGINAL, AND USED THE PICTURE IMAGES OF
THE BALLOTS IN ITS SUBSEQUENT
RESOLUTION NO. 11-487 (DATED 15
SEPTEMBER 2011) – EVEN IF UNDER THE
ELECTRONIC COMMERCE ACT OF 2000, THE
PICTURE IMAGES OF THE PAPER BALLOTS ARE
NOT THE EQUIVALENT OF THE ORIGINAL
PAPER BALLOTS.
IV.
THE HON. PUBLIC RESPONDENT HRET IN
RESOLUTION NO. 11-321 (DATED 08 JUNE
2011) REGARDED THE PICTURE IMAGES OF
THE BALLOTS AS THE EQUIVALENT OF THE
ORIGINAL, AND USED THE PICTURE IMAGES OF
THE BALLOTS IN ITS SUBSEQUENT
RESOLUTION NO. 11-487 (DATED 15
SEPTEMBER 2011) – EVEN IF PETITIONER HAS
SHOWN BY SUBSTANTIAL EVIDENCE THAT THE
CF CARDS USED IN THE MAY 2010 ELECTIONS
WERE NOT PRESERVED OR WERE VIOLATED.
V.
 THE HON. PUBLIC RESPONDENT HRET IN 2.THE ISSUES RESOLVED IN RESOLUTION NO.
RESOLUTION NO. 11-321 (DATED 08 JUNE 11-487 DATED SEPTEMBER 8, 2011 AND THOSE
2011) REGARDED THE PICTURE IMAGES OF IN RESOLUTION NO. 12-079 DATED MARCH 22,
THE BALLOTS AS THE EQUIVALENT OF THE 2012 ARE INTERRELATED;
ORIGINAL, AND USED THE PICTURE IMAGES OF
THE BALLOTS IN ITS SUBSEQUENT
3.PURSUANT TO THE RULING OF THIS MOST
RESOLUTION NO. 11-487 (DATED 15
HONORABLE COURT IN THE CASE OF VARIAS
SEPTEMBER 2011) – EVEN IF THERE IS NO
VS. COMELEC (G.R. NO. 189078 FEBRUARY 11,
LEGAL BASIS FOR THE HONORABLE TRIBUNAL
2010), THE RESULTS OF THE REVISION OF
TO CONSIDER THE PICTURE IMAGE OF THE
QUESTIONABLE BALLOTS CANNOT PREVAIL
BALLOTS AS EVIDENCE, SINCE SUCH PICTURE
OVER ELECTION RETURNS;
IMAGES ARE NOT EVEN RECOGNIZED AND
THEIR APPRECIATION ARE NOT PROVIDED FOR,
UNDER THE OMNIBUS ELECTION CODE. 4.THE PICTURE IMAGE OF THE BALLOTS MAY
BE USED AS PROOF OF THE INTEGRITY OF THE
PAPER BALLOTS;
VI.

5.RESOLUTION NO. 12-079 HAS NO LEGAL AND

THE HON. PUBLIC RESPONDENT HRET ISSUED
FACTUAL BASES TO STAND ON BECAUSE
RESOLUTION NO. 11-487 (DATED 15
PRIVATE RESPONDENT FAILED TO ESTABLISH
SEPTEMBER 2011) DESPITE THE PENDENCY OF
THE MERIT OR LEGITIMARY [sic] OF HER
THE COMELEC INVESTIGATION ON THE MAIN
PROTEST CONSIDERING THAT SHE FAILED TO
CF CARD FOR CLUSTERED PRECINCT 44 OF
MAKE A REASONABLE RECOVERY OR MUCH
THE MUNICIPALITY OF DAET.
LESS, ANY RECOVERY AT ALL;

VII.
6.RESOLUTION NO. 12-079 IS CONTRADICTORY
TO THE FINDINGS OF THE PUBLIC
THE HON. PUBLIC RESPONDENT HRET ISSUED RESPONDENT HRET IN ITS RESOLUTION NO.
RESOLUTION NO. 11-487 (DATED 15 11-487;
SEPTEMBER 2011) BASED ON VILLAFUERTE
VS. JACOB (15 HRET REPORT 754), WHICH IS
7.THE PENDENCY OF THE PETITION FOR
ONLY AN HRET CASE WHICH HAS NO
CERTIORARI FILED BY PRIVATE RESPONDENT
PRECEDENTIAL VALUE.
BEFORE THE SUPREME COURT IS A
PRELIMINARY MATTER THAT MUST BE
VIII. RESOLVED FIRST BEFORE THE HONORABLE
TRIBUNAL MAY ORDER THE REVISION OF THE
REMAINING 75% OF THE PROTESTED
THE HON. PUBLIC RESPONDENT HRET ISSUED
PRECINCTS;
RESOLUTION NO. 11-321 (DATED 08 JUNE
2011) AND RESOLUTION NO. 11-487 (DATED 15
SEPTEMBER 2011) – IN CONTRAVENTION OF 8.THE RELIABILITY OF THE COMPACT FLASH
CASE LAW THAT THERE SHOULD BE A FULL CARDS HAS NOT BEEN SHOWN TO BE
BLOWN TRIAL CONCERNING THE INTEGRITY OF QUESTIONABLE;
THE BALLOTS.21
9.THE RESULT OF THE RECOUNT CANNOT BE
G.R. No. 201350 USED TO OVERTURN THE RESULTS AS
REFLECTED IN THE ELECTION RETURNS
BECAUSE THE BALLOTS IN EP CASE NO. 10-040
After the initial revision of the pilot protested clustered
HAVE BEEN TAMPERED.29
precincts, Chato moved,22 as early as March 24, 2011, for
the revision of ballots in all of the protested clustered
precincts arguing that the results of the revision of twenty- The Ruling of the Court
five percent (25%) of said precincts indicate a reasonable
recovery of votes in her favor. On May 12, 2011, she filed a
"It is hornbook principle that our jurisdiction to review
second motion23 reiterating her prayer for the continuance
decisions and orders of electoral tribunals is exercised only
of the revision. The HRET denied the motion "until the
upon showing of grave abuse of discretion committed by
Tribunal shall have determined the merit or legitimacy of
the tribunal;" otherwise, we shall not interfere with the
the protest, relative to the revised forty (40) pilot protested
electoral tribunal’s exercise of its discretion or jurisdiction.
clustered precincts."24 For the same reason, the HRET
"Grave abuse of discretion has been defined as the
denied two (2) other similar motions25 filed by Chato.
capricious and whimsical exercise of judgment, or the
exercise of power in an arbitrary manner, where the abuse
However, on March 22, 2012, the HRET issued the assailed is so patent and gross as to amount to an evasion of
Resolution26 No. 12-079 directing the continuation of the positive duty."30
revision of ballots in the remaining seventy-five percent
(75%) protested clustered precincts, or a total of 120
The acts complained of in these cases pertain to the
precincts. Expectedly, Panotes moved27 for reconsideration
HRET’s exercise of its discretion, an exercise which we find
of Resolution No. 12-079, which was denied in the
to be well within the bounds of its authority and, therefore,
Order28 dated April 10, 2012 for lack of merit. The HRET
beyond our power to restrict or curtail.
further warned that any attempt on the part of the revisors
to delay the revision proceedings or to destroy the integrity
of the ballots and other election documents involved, G.R. No. 199149
including but not limited to, marking or tearing of ballots
shall be sufficient ground(s) for immediate disqualification.
Chato assails in this petition the following issuances of the
HRET: (1) Resolution No. 11-321 dated June 8, 2011
Panotes is now before Us via the instant petition for denying her Urgent Motion to Prohibit the Use by Protestee
certiorari and prohibition alleging grave abuse of discretion of the Decrypted and Copied Ballot Images in the Instant
amounting to lack or excess of jurisdiction on the part of Case; and (2) Resolution No. 11-487 dated September 15,
the HRET in issuing Resolution No. 12-079 and Order 2011 denying her Motion for Reconsideration of Resolution
dated April 10, 2012 considering that – No. 11-321.

1.THE HONORABLE TRIBUNAL ALREADY The crucial issue posed by Chato is whether or not the
CATEGORICALLY RULED IN ITS OWN picture images of the ballots may be considered as the
RESOLUTION NO. 11-487 THAT THE VOTES "official ballots" or the equivalent of the original paper
DETERMINED IN THE REVISION CANNOT BE ballots which the voters filled out. She maintains that,
RELIED UPON SINCE THEY ARE THE PRODUCT since the automated election system (AES) used during the
OF ALTERED BALLOTS; May 10, 2010 elections was paper-based,31 the "official
ballot" is only the paper ballot that was printed by the
National Printing Office and/or the Bangko Sentral ng
Pilipinas pursuant to Section 15 of R.A. No. 8436, as
amended by R.A. No. 9369, which reads in part as follows:
Sec.15. Official Ballot. – x x x
xxxx
With respect to a paper-based election system, the official
ballots shall be printed by the National Printing Office
and/or the Bangko Sentral ng Pilipinas at the price
comparable with that of private printers under proper
security measures which the Commission shall adopt. The
Commission may contact the services of private printers
upon certification by the National Printing Office/Bangko
Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and deputized
citizen's arms of the Commission shall assign watchers in
the printing, storage and distribution of official ballots.
xxxx
Section 2 (3) of R.A. No. 9369 defines "official ballot" where
AES is utilized as the "paper ballot, whether printed or
generated by the technology applied, that faithfully
captures or represents the votes cast by a voter recorded or
to be recorded in electronic form."
requires a secret decryption key, that adversaries do not
have access to."39
Despite this security feature, however, the possibility of
tampering or substitution of the CF cards did not escape
the HRET, which provided in its Guidelines on the Revision
of Ballots that:
Sec. 11. Printing of the picture images of the ballots in lieu
of photocopying. – Unless it has been shown, in a
preliminary hearing set by the parties or motu propio, that
the integrity of any of the Compact Flash (CF) Cards used
in the May 10, 2010 elections was not preserved or the
same was violated, as when there is proof of tampering or
substitution, the Tribunal, in lieu of photocopying of ballots
upon any motion of any of the parties, shall direct the
printing of the picture image of the ballots of the subject
precinct stored in the data storage device for the same
precinct. The Tribunal shall provide a non-partisan
technical person who shall conduct the necessary
authentication process to ensure that the data or image
stored is genuine and not a substitute.
Accordingly, the HRET set the instant case for preliminary
hearing on May 27, 2011, and directed Chato, the
protestant, to present testimonial and/or documentary
evidence to show proof that the integrity of the CF cards
used in the May 10, 2010 elections was not preserved or
was violated.40

An automated election system, or AES, is a system using
appropriate technology which has been demonstrated in
the voting, counting, consolidating, canvassing, and
transmission of election result, and other electoral
process.32 There are two types of AES identified under R.A.
No. 9369: (1) paper-based election system; and (2) direct
recording electronic election system. A paper-based election
system, such as the one adopted during the May 10, 2010
elections, is the type of AES that "use paper ballots,
records and counts votes, tabulates,
consolidates/canvasses and transmits electronically the
results of the vote count."33 On the other hand, direct
recording electronic election system "uses electronic
ballots, records, votes by means of a ballot display provided
with mechanical or electro-optical component that can be
activated by the voter, processes data by means of
computer programs, record voting data and ballot images,
and transmits voting results electronically."34
However, in the assailed Resolution No. 11-321, the HRET
found Chato's evidence insufficient. The testimonies of the
witnesses she presented were declared irrelevant and
immaterial as they did not refer to the CF cards used in the
20 precincts in the Municipalities of Basud and Daet with
substantial variances. Pertinent portions of the transcripts
of stenographic notes during the May 27, 2011 preliminary
hearing are quoted hereunder:41
REYNANTE B. MAGO:
Q: Do you have any knowledge regarding the municipalities
of Basud and Daet?
A: Wala po kasi hindi naman yung ang aking bet [sic,
should have been "beat", a journalistic jargon for the
reporter's official place of assignment]

As earlier stated, the May 10, 2010 elections used a paper-

Q: Wala kang nalalaman regarding the municipalities of
based technology that allowed voters to fill out an official
Basud and Daet?
paper ballot by shading the oval opposite the names of
their chosen candidates. Each voter was then required to
personally feed his ballot into the Precinct Count Optical A: Wala po.
Scan (PCOS) machine which scanned both sides of the
ballots simultaneously,35 meaning, in just one pass.36 As
Q: Are you sure?
established during the required demo tests, the system
captured the images of the ballots in encrypted format
which, when decrypted for verification, were found to be A: Sure na sure po kasi hindi ko naman po yun bet [sic]
digitized representations of the ballots cast.37 noong mga panahon na yun. Wala po akong direct na
knowledge o participation regarding that during the time of
election period.
We agree, therefore, with both the HRET and Panotes that
the picture images of the ballots, as scanned and recorded
by the PCOS, are likewise "official ballots" that faithfully PROVINCIAL PROSECUTOR OSCAR J. VILAFUERTE:
captures in electronic form the votes cast by the voter, as
defined by Section 2 (3) of R.A. No. 9369. As such, the
Q: Before proceeding with your testimony, I would ask if
printouts thereof are the functional equivalent of the paper
you have any knowledge about the election regarding the
ballots filled out by the voters and, thus, may be used for
municipalities of Basud and Daet?
purposes of revision of votes in an electoral protest.

A: Well, as the Vice-Chairman of the Provincial Board of

It bears stressing that the digital images of the ballots
Canvassers, Your Honor, in the last May 10, 2010
captured by the PCOS machine are stored in an encrypted
elections, yes.
format in the CF cards.38 "Encryption is the process of
encoding messages (or information) in such a way that
eavesdroppers or hackers cannot read it, but that Q: Regarding the last CF cards?
authorized parties can. In an encryption scheme, the
message or information (referred to as plaintext) is
A: No. We are just limited to the reception of the election
encrypted using an encryption algorithm, turning it into an results.
unreadable ciphertext. This is usually done with the use of
an encryption key, which specifies how the message is to
be encoded. Any adversary that can see the ciphertext, Q: So, with regard to the CF cards in the municipalities of
should not be able to determine anything about the original Basud and Daet, you do not have any knowledge at all?
message. An authorized party, however, is able to decode
the ciphertext using a decryption algorithm, that usually A: Personally, no, because it does not affect us, Your
Honor.
MR. ANGEL S. AVERIA, JR:
Q: Will you be testifying regarding CF cards involving the
municipalities of Daet and Basud?
A: Not specific to those municipalities.
Q: Sa Daet, wala?
A: Wala.
Q: Sa Basud, wala?
A: Wala ho. The reports I wrote for CENPEG is on a
national scale.
To substitute our own judgment to the findings of the
HRET will doubtless constitute an intrusion into its domain
and a curtailment of its power to act of its own accord on
its evaluation of the evidentiary weight42 of testimonies
presented before it. Thus, for failure of Chato to discharge
her burden of proving that the integrity of the questioned
CF cards had not been preserved, no further protestations
to the use of the picture images of the ballots as stored in
the CF cards should be entertained.
Moreover, after having participated and presented her
evidence at the May 27, 2011 preliminary hearing, Chato
cannot now be heard to complain that the proceedings
therein did not amount to a full blown trial on the merits
required in the case of Tolentino v. COMELEC 43 for
weighing the integrity of ballots.
Her allegation with respect to the pendency of the
COMELEC investigation on the main CF card for Clustered
Precinct 44 of the Municipality of Daet, which was
previously ordered by the HRET itself when the election
officer submitted only the back-up CF card that did not,
however, contain picture images of the ballots,44 could not
in the least bit affect the resolution of this case. As
correctly pointed out by the HRET, the same concerns only
one (1) precinct out of the 20 precincts with substantial
variances.45 At any rate, the following explanation46
proferred by the HRET should put the issue to rest, viz:
x x x On November 2, 2011, John Rex C. Laudiangco of the
COMELEC Law Department, filed Comelec's Compliance
with Manifestation and Motion to Admit the Attached Fact-
Finding Investigation Report explaining the delay in the
conduct of the investigation which was duly conducted on
October 7, 2011, and submitting therewith a
comprehensive Fact-Finding Investigation Report on the
said investigation which was docketed in the Law
Department as Case No. FF.INV. (LD) 11-46 entitled "In the
Matter of Investigation on What Happened to the Main CF
(Compact Flash) card for Clustered Precinct No. 44 for the
Municipality of Daet, Camarines Norte."
In sum, the investigation revealed that the main CF Card
for CP No. 44 of the Municipality of Daet could possibly be
located inside the ballot box of the Municipal Board of
Canvassers (MBOC) of Daet, Camarines Norte (serial no.
CE-07-166991), after having been allegedly submitted in
an improvised envelope, by the Board of Election
Inspectors (BEI) of said CP 44 to the MBOC. It was,
therefore, recommended that said ballot box be opened to
retrieve the said CF card.
Accordingly, in her January 6, 2012 letter to public
respondent, Atty. Anne A. Romero-Cortez submitted certain
documents relative to the opening of the ballot box of the
MBOC of Daet, Camarines Norte (serial no. CE-07-166991)
so the main CF Card for CP 44 of Daet may be retrieved
and its custody turned over to the Election Records and
Statistics Department (ERSD), COMELEC.
Likewise, in her January 6, 2012 letter to public
respondent, ERSD Director Ester L. Villaflor-Roxas
requested that a representative from public respondent be
present on the day to witness the verification and backing-
up of the contents of the main CF card for CP No. 44 of
Daet, Camarines Norte.
Verily, the case of the alleged missing CF Card for
Clustered Precinct No. 44 is no mystery at all.
G.R. No. 201350
In the main, Panotes ascribes grave abuse of discretion on
the part of the HRET in ordering the continuation of the
revision of ballots in the remaining 75% of the protested
clustered precincts despite having previously ruled that the
votes determined after the revision in the 20 precincts in
the Municipalities of Basud and Daet, which yielded
reversal of votes, cannot be relied upon, as they do not
reflect the true will of the electorate.
The Constitution mandates that the HRET "shall be the
sole judge of all contests relating to the election, returns
and qualifications" of its members. By employing the word
"sole", the Constitution is emphatic that the jurisdiction of
the HRET in the adjudication of election contests involving
its members is intended to be its own – full, complete and
unimpaired.47 The Tribunal, thus, unequivocally asserted
its exclusive control in Rule 7 of the 2011 HRET Rules, as
follows:
Rule 7. Exclusive Control of Functions. – The Tribunal
shall have exclusive control, direction, and supervision of
all matters pertaining to its own functions and operation.
There can be no challenge, therefore, to such exclusive
control absent any clear showing, as in this case, of
arbitrary and improvident use by the Tribunal of its power
that constitutes a denial of due process of law, or upon a
demonstration of a very clear unmitigated error, manifestly
constituting such grave abuse of discretion that there has
to be a remedy therefor.48
Contrary to Panotes' posturing, there existed legal and
factual bases for the revision of the remaining 75% of the
protested clustered precincts. Rule 37 of the 2011 HRET
Rules clearly provides that, after post-revision
determination of the merit or legitimacy of the protest, the
Tribunal may proceed with the revision of the ballots in the
remaining contested precincts, thus:
Rule 37. Post-Revision Determination of the Merit or
Legitimacy of Protest Prior to Revision of Counter-Protest;
Pilot Precincts; Initial Revision. – Any provision of these
Rules to the contrary notwithstanding, as soon as the
issues in any contest before the Tribunal have been joined,
the Protestant, in case the protest involves more than 50%
of the total number of precincts in the district, shall be
required to state and designate in writing within a fixed
period at most twenty five (25%) percent of the total
number of precincts involved in the protest which said
party deems as best exemplifying or demonstrating the
electoral irregularities or fraud pleaded by him; and the
revision of the ballots or the examination, verification or re-
tabulation of election returns and/or reception of evidence
shall begin with such pilot precincts designated. Otherwise,
the revision of ballots or the examination, verification and
re-tabulation of election returns and/or reception of
evidence shall begin with all the protested precincts. The
revision of ballots or the examination, verification and re-
tabulation of election returns in the counter-protested
precincts shall not be commenced until the Tribunal shall
have determined through appreciation of ballots or election
documents and/or reception of evidence, which reception
shall not exceed ten (10) days, the merit or legitimacy of the
protest, relative to the pilot protested precincts. Based on
the results of such post-revision determination, the
Tribunal may dismiss the protest without further
proceedings, if and when no reasonable recovery was
established from the pilot protested precincts, or proceed
with the revision of the ballots or the examination,
verification and re-tabulation of election returns in the
remaining contested precincts.
Panotes argues that Chato had not made a reasonable
recovery in the initial revision of ballots in the 25% pilot
protested clustered precincts and, as such, the HRET
should have dismissed the protest in accordance with the
aforequoted provision instead of ordering further the
revision of the remaining 75% of the protested clustered
precincts.1âwphi1
It should be pointed out, however, that the provision in
question is couched in the permissive term "may" instead
of the mandatory word "shall." Therefore, it is merely
directory, and the HRET is not without authority to opt to
proceed with the revision of ballots in the remaining
contested precincts even if there was no reasonable
recovery made by the protestant in the initial revision.
In the assailed Resolution49 No. 12-079, the HRET justified
its action by its need "to re-examine what appears to be a
peculiar design to impede the will of the electorate," and
that a revision of all the protested clustered precincts will
allow it "to see the whole picture of the controversy." Thus
said the HRET:
The evidence as presented by the parties involving the
twenty-five percent (25%) pilot protested clustered
precincts is still insufficient to justify an indubitable
conclusion. There are still material issues that should be
taken into account. The substantial increase in the number
of ballots for protestant and the substantial decrease in the
number of ballots for protestee after comparing the election
returns with the physical counts of the ballots are prima
facie findings that should not be trivialized. Also, the
reliability of the compact flash cards including its
admissibility was raised by the protestant as an area of
concern which needs precise and definitive ruling by the
Tribunal. A complete disavowal of the constitutional duty
will be debased if the Tribunal is not going to see the whole
picture of the controversy. After all, the revision
proceedings will not unduly toll the precious time of the
Tribunal. All of the ballot boxes involved in this protest are
already in the custody of the Tribunal and will not require
sizeable manpower to revise it.
At the risk of unduly encroaching on the exclusive
prerogative of the HRET as the sole judge of election
contests involving its members, we cannot substitute our
own judgment for that of the HRET on the issues of
whether the evidence presented during the initial revision
could affect the officially proclaimed results and whether
the continuation of the revision proceedings could lead to a
determination of the true will of the electorate. 50
In any case, as pointed out by the HRET, the revision
proceedings for the remaining 75% protested clustered
precincts had already been conducted from May 2-9, 2012
thereby rendering the issue moot and academic.
Having, thus, established the futility of Panotes' case, we
need not belabor the other issues raised in this petition.
WHEREFORE, the petitions are hereby DISMISSED for lack
of merit.
SO ORDERED.
G.R. No. 203302 April 11, 2013
MAYOR EMMANUEL L. MALIKSI, Petitioner,
vs.
COMMISSION ON ELECTIONS AND HOMER T.
SAQUILAVAN, Respondents.
RESOLUTION
BERSAMIN, J.:
The Court hereby resolves the Extremely Urgent Motion for
Reconsideration tiled by petitioner Emmanuel L. Maliksi
against the Court's decision promulgated on March 12,
2013, dismissing his petition for certiorari assailing the
resolution dated September 14, 2012 of the Commission on
Elections (COMELEC) En Bane that sustained the
declaration of respondent Homer T. Saquilayan as the duly
elected Mayor of Imus, Cavite.
For clarity, we briefly restate the factual antecedents.
During the 2010 Elections, the Municipal Board of
Canvassers proclaimed Saquilayan the winner for the
position of Mayor of Imus, Cavite. Maliksi, the candidate
who garnered the second highest number of votes, brought
an election protest in the Regional Trial Court (RTC) in
Imus, Cavite alleging that there were irregularities in the
counting of votes in 209 clustered precincts. Subsequently,
the RTC held a revision of the votes, and, based on the
results of the revision, declared Maliksi as the duly elected
Mayor of Imus commanding Saquilayan to cease and desist
from performing the functions of said office. Saquilayan
appealed to the COMELEC. In the meanwhile, the RTC
granted Maliksi’s motion for execution pending appeal, and
Maliksi was then installed as Mayor.
In resolving the appeal, the COMELEC First Division,
without giving notice to the parties, decided to recount the
ballots through the use of the printouts of the ballot images
from the CF cards. Thus, it issued an order dated March
28, 2012 requiring Saquilayan to deposit the amount
necessary to defray the expenses for the decryption and
printing of the ballot images. Later, it issued another order
dated April 17, 2012 for Saquilayan to augment his cash
deposit.
On August 15, 2012, the First Division issued a resolution
nullifying the RTC’s decision and declaring Saquilayan as
the duly elected Mayor.1
Maliksi filed a motion for reconsideration, alleging that he
had been denied his right to due process because he had
not been notified of the decryption proceedings. He argued
that the resort to the printouts of the ballot images, which
were secondary evidence, had been unwarranted because
there was no proof that the integrity of the paper ballots
had not been preserved.
On September 14, 2012, the COMELEC En Banc resolved
to deny Maliksi’s motion for reconsideration.2
Maliksi then came to the Court via petition for certiorari,
reiterating his objections to the decryption, printing, and
examination of the ballot images without prior notice to
him, and to the use of the printouts of the ballot images in
the recount proceedings conducted by the First
Division.1âwphi1
In the decision promulgated on March 12, 2013, the Court,
by a vote of 8-7, dismissed Maliksi’s petition for certiorari.
The Court concluded that Maliksi had not been denied due
process because: (a) he had received notices of the
decryption, printing, and examination of the ballot images
by the First Division — referring to the orders of the First
Division directing Saquilayan to post and augment the
cash deposits for the decryption and printing of the ballot
images; and (b) he had been able to raise his objections to
the decryption in his motion for reconsideration. The Court
then pronounced that the First Division did not abuse its
discretion in deciding to use the ballot images instead of
the paper ballots, explaining that the printouts of the ballot
images were not secondary images, but considered original
documents with the same evidentiary value as the official
ballots under the Rule on Electronic Evidence; and that the
First Division’s finding that the ballots and the ballot boxes
had been tampered had been fully established by the large
number of cases of double-shading discovered during the
revision.
In his Extremely Urgent Motion for Reconsideration,
Maliksi raises the following arguments, to wit:
I.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME
COURT EN BANC GRAVELY ERRED IN DISMISSING THE
INSTANT PETITION DESPITE A CLEAR VIOLATION OF
PETITIONER’S CONSTITUTIONAL RIGHT TO DUE
PROCESS OF LAW CONSIDERING THAT DECRYPTION,
PRINTING AND EXAMINATION OF THE DIGITAL IMAGES
OF THE BALLOTS, WHICH IS THE BASIS FOR THE
ASSAILED 14 SEPTEMBER 2012 RESOLUTION OF THE
PUBLIC RESPONDENT, WHICH IN TURN AFFIRMED THE
15 AUGUST 2012 RESOLUTION OF THE COMELEC FIRST
DIVISION, WERE DONE INCONSPICUOUSLY UPON A
MOTU PROPRIO DIRECTIVE OF THE COMELEC FIRST
DIVISION SANS ANY NOTICE TO THE PETITIONER, AND
FOR THE FIRST TIME ON APPEAL.
II.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME
COURT EN BANC GRAVELY ERRED IN UPHOLDING THE
COMELEC FIRST DIVISION’S RULING TO DISPENSE WITH
THE PHYSICAL BALLOTS AND RESORT TO THEIR
DIGITAL IMAGES NOTWITHSTANDING THE FACT THAT
THE BALLOTS ARE THE BEST AND MOST CONCLUSIVE
EVIDENCE OF THE VOTERS’ WILL, AND THAT BALLOT
IMAGES CAN BE RESORTED TO ONLY IF THE OFFICIAL
BALLOTS ARE LOST OR THEIR INTEGRITY WAS
COMPROMISED AS DETERMINED BY THE
RECOUNT/REVISION COMMITTEE, CIRCUMSTANCES
WHICH ARE WANTING IN THIS CASE, AND IN FACT THE
INTEGRITY OF THE BALLOT BOXES AND ITS CONTENTS
WAS PRESERVED AND THE ISSUE OF TAMPERING WAS
ONLY BELATEDLY RAISED BY THE PRIVATE
RESPONDENT AFTER THE REVISION RESULTS SHOWED
THAT HE LOST.
III.
WITH ALL DUE RESPECT, IT IS THE HUMBLE
SUBMISSION OF THE PETITIONER-MOVANT THAT THE
12 MARCH 2013 RESOLUTION ISSUED BY THE
HONORABLE SUPREME COURT EN BANC IS NULL AND
VOID AB INITIO AND THEREFORE OF NO FORCE AND
EFFECT, FOR HAVING BEEN PROMULGATED DESPITE
THE ABSENCE OF HONORABLE SUPREME COURT
JUSTICE JOSE PORTUGAL PEREZ AT THE TIME OF THE
DELIBERATION AND VOTING ON THE 12 MARCH 2013
RESOLUTION IN THE INSTANT CASE.3
Maliksi insists: (a) that he had the right to be notified of
every incident of the proceedings and to be present at every
stage thereof; (b) that he was deprived of such rights when
he was not informed of the decryption, printing, and
examination of the ballot images by the First Division; (c)
that the March 28, 2012 and April 17, 2012 orders of the
First Division did not sufficiently give him notice inasmuch
as the orders did not state the date, time, and venue of the
decryption and printing of the ballot images; and (d) that
he was thus completely deprived of the opportunity to
participate in the decryption proceedings.
Maliksi contends that the First Division’s motu proprio
directive for the decryption, printing, and examination of
the ballot images was highly irregular. In this regard, he
asserts: (a) that the decryption, printing, and examination
should have taken place during the revision before the trial
court and after the revision committee had determined that
the integrity of the official ballots had not been preserved;
(b) that the trial court did not make such determination; (c)
that, in fact, Saquilayan did not allege or present any proof
in the RTC to show that the ballots or the ballot boxes had
been tampered, and had, in fact, actively participated in
the revision proceedings; (d) that the First Division should
not have entertained the allegation of ballot tampering
belatedly raised on appeal; (e) that the First Division
should have limited itself to reviewing the evidence on
record; and (f) that the First Division did not even explain
how it had arrived at the conclusion that the integrity of
the ballots had not been preserved.
Maliksi submits that the decision promulgated on March
12, 2013 is null and void for having been promulgated
despite the absence from the deliberations and lack of
signature of Justice Jose Portugal Perez.
Ruling
The Court grants Maliksi’s Extremely Urgent Motion for
Reconsideration, and reverses the decision promulgated on
March 12, 2013 on the ground that the First Division of the
COMELEC denied to him the right to due process by failing
to give due notice on the decryption and printing of the
ballot images. Consequently, the Court annuls the recount
proceedings conducted by the First Division with the use of
the printouts of the ballot images.
It bears stressing at the outset that the First Division
should not have conducted the assailed recount
proceedings because it was then exercising appellate
jurisdiction as to which no existing rule of procedure
allowed it to conduct a recount in the first instance. The
recount proceedings authorized under Section 6, Rule 15 of
COMELEC Resolution No. 8804, as amended, are to be
conducted by the COMELEC Divisions only in the exercise
of their exclusive original jurisdiction over all election
protests involving elective regional (the autonomous
regions), provincial and city officials.4
As we see it, the First Division arbitrarily arrogated unto
itself the conduct of the recount proceedings, contrary to
the regular procedure of remanding the protest to the RTC
and directing the reconstitution of the Revision Committee
for the decryption and printing of the picture images and
the revision of the ballots on the basis thereof. Quite
unexpectedly, the COMELEC En Banc upheld the First
Division’s unwarranted deviation from the standard
procedures by invoking the COMELEC’s power to "take
such measures as the Presiding Commissioner may deem
proper," and even citing the Court’s minute resolution in
Alliance of Barangay Concerns (ABC) Party-List v.
Commission on Elections5 to the effect that the "COMELEC
has the power to adopt procedures that will ensure the
speedy resolution of its cases. The Court will not interfere
with its exercise of this prerogative so long as the parties
are amply heard on their opposing claims."
Based on the pronouncement in Alliance of Barangay
Concerns (ABC) v. Commission on Elections, the power of
the COMELEC to adopt procedures that will ensure the
speedy resolution of its cases should still be exercised only
after giving to all the parties the opportunity to be heard on
their opposing claims. The parties’ right to be heard upon
adversarial issues and matters is never to be waived or
sacrificed, or to be treated so lightly because of the
possibility of the substantial prejudice to be thereby caused
to the parties, or to any of them. Thus, the COMELEC En
Banc should not have upheld the First Division’s deviation
from the regular procedure in the guise of speedily
resolving the election protest, in view of its failure to
provide the parties with notice of its proceedings and an
opportunity to be heard, the most basic requirements of
due process.
I.
Due process requirements
The picture images of the ballots are electronic documents
that are regarded as the equivalents of the original official
ballots themselves.6 In Vinzons-Chato v. House of
Representatives Electoral Tribunal,7 the Court held that
"the picture images of the ballots, as scanned and recorded
by the PCOS, are likewise ‘official ballots’ that faithfully
capture in electronic form the votes cast by the voter, as
defined by Section 2(3) of R.A. No. 9369. As such, the
printouts thereof are the functional equivalent of the paper
ballots filled out by the voters and, thus, may be used for
purposes of revision of votes in an electoral protest."
That the two documents—the official ballot and its picture
image—are considered "original documents" simply means
that both of them are given equal probative weight. In
short, when either is presented as evidence, one is not
considered as weightier than the other.
But this juridical reality does not authorize the courts,
the COMELEC, and the Electoral Tribunals to quickly
and unilaterally resort to the printouts of the picture
images of the ballots in the proceedings had before
them without notice to the parties. Despite the equal
probative weight accorded to the official ballots and the
printouts of their picture images, the rules for the
revision of ballots adopted for their respective
proceedings still consider the official ballots to be the
primary or best evidence of the voters’ will. In that
regard, the picture images of the ballots are to be used
only when it is first shown that the official ballots are
lost or their integrity has been compromised.
For instance, the aforesaid Section 6, Rule 15 of COMELEC
Resolution No. 8804 (In Re: Comelec Rules of Procedure on
Disputes In An Automated Election System in Connection
with the May 10, 2010 Elections), as amended by
COMELEC Resolution No. 9164, itself requires that "the
Recount Committee determines that the integrity of the
ballots has been violated or has not been preserved, or are
wet and otherwise in such a condition that (the ballots)
cannot be recounted" before the printing of the image of the
ballots should be made, to wit:
xxxx
(g) Only when the Recount Committee, through its
chairman, determines that the integrity of the ballots has
been preserved or that no signs of tampering of the ballots
are present, will the recount proceed. In case there are
signs that the ballots contained therein are tampered,
compromised, wet or are otherwise in such a condition that
it could not be recounted, the Recount Committee shall
follow paragraph (l) of this rule.
xxxx
(l) In the event the Recount Committee determines that the
integrity of the ballots has been violated or has not been
preserved, or are wet and otherwise in such a condition
that it cannot be recounted, the Chairman of the
Committee shall request from the Election Records and
Statistics Department (ERSD), the printing of the image of
the ballots of the subject precinct stored in the CF card
used in the May 10, 2010 elections in the presence of the
parties. Printing of the ballot images shall proceed only
upon prior authentication and certification by a duly
authorized personnel of the Election Records and Statistics
Department (ERSD) that the data or the images to be
printed are genuine and not substitutes. (Emphases
supplied.)
xxxx
Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules
of Procedure for Municipal Election Contests, which
governs the proceedings in the Regional Trial Courts
exercising original jurisdiction over election protests,
provides:
xxxx
(m) In the event that the revision committee determines
that the integrity of the ballots and the ballot box have not
been preserved, as when proof of tampering or substitution
exists, it shall proceed to instruct the printing of the
picture image of the ballots stored in the data storage
device for the precinct. The court shall provide a non-
partisan technical person who shall conduct the necessary
authentication process to ensure that the data or image
stored is genuine and not a substitute. Only after this
determination can the printed picture image be used for
the recount. (Emphases supplied.)
xxxx
A similar procedure is found in the 2010 Rules of the
Presidential Electoral Tribunal, to wit:
Rule 43. Conduct of the revision. – The revision of votes
shall be done through the use of appropriate PCOS
machines or manually and visually, as the Tribunal may
determine, and according to the following procedures:
xxxx
(q) In the event that the RC determines that the integrity of
the ballots and the ballot box was not preserved, as when
there is proof of tampering or substitution, it shall proceed
to instruct the printing of the picture image of the ballots of
the subject precinct stored in the data storage device for
the same precinct. The Tribunal may avail itself of the
assistance of the COMELEC for the service of a non-
partisan technical person who shall conduct the necessary
authentication process to ensure that the data or images
stored are genuine and not merely substitutes. It is only
upon such determination that the printed picture image
can be used for the revision of votes. (Emphases supplied.)
xxxx
Also, the House of Representative Electoral Tribunal’s
Guidelines on the Revision of Ballots requires a preliminary
hearing to be held for the purpose of determining whether
the integrity of the ballots and ballot boxes used in the May
10, 2010 elections was not preserved, as when there is
proof of tampering or substitutions, to wit:
Section 10. Revision of Ballots
xxxx
(d) When it has been shown, in a preliminary hearing set
by the parties or by the Tribunal, that the integrity of the
ballots and ballot boxes used in the May 10, 2010 elections
was not preserved, as when there is proof of tampering or
substitutions, the Tribunal shall direct the printing of the
picture images of the ballots of the subject precinct stored
in the data storage device for the same precinct. The
Tribunal shall provide a non-partisan technical person who
shall conduct the necessary authentication process to
ensure that the data or image stored is genuine and not a
substitute. It is only upon such determination that the
printed picture image can be used for the revision. (As
amended per Resolution of February 10, 2011; Emphases
supplied.)
xxxx
All the foregoing rules on revision of ballots stipulate that
the printing of the picture images of the ballots may be
resorted to only after the proper Revision/Recount
Committee has first determined that the integrity of the
ballots and the ballot boxes was not preserved.
The foregoing rules further require that the decryption of
the images stored in the CF cards and the printing of the
decrypted images take place during the revision or recount
proceedings. There is a good reason for thus fixing where
and by whom the decryption and the printing should be
conducted. It is during the revision or recount conducted
by the Revision/Recount Committee when the parties are
allowed to be represented, with their representatives
witnessing the proceedings and timely raising their
objections in the course of the proceedings. Moreover,
whenever the Revision/Recount Committee makes any
determination that the ballots have been tampered and
have become unreliable, the parties are immediately made
aware of such determination.
When, as in the present case, it was not the
Revision/Recount Committee or the RTC exercising original
jurisdiction over the protest that made the finding that the
ballots had been tampered, but the First Division in the
exercise of its appellate jurisdiction, the parties should
have been given a formal notice thereof.
Maliksi was not immediately made aware of that crucial
finding because the First Division did not even issue any
written resolution stating its reasons for ordering the
printing of the picture images. The parties were formally
notified that the First Division had found that the ballots
had been tampered only when they received the resolution
of August 15, 2012, whereby the First Division nullified the
decision of the RTC and declared Saquilayan as the duly
elected Mayor. Even so, the resolution of the First Division
to that effect was unusually mute about the factual bases
for the finding of ballot box tampering, and did not also
particularize how and why the First Division was
concluding that the integrity of the ballots had been
compromised. All that the First Division declared as
justification was a simple generalization of the same being
apparent from the allegations of ballot and ballot box
tampering and upon inspection of the ballot boxes, viz:
xxxx
The Commission (First Division) took into consideration the
allegations of ballot and ballot box tampering and upon
inspecting the ballot boxes, it is apparent that the integrity
of the ballots had been compromised so, to be able to best
determine the true will of the electorate, we decided to go
over the digital image of the appealed ballots.8 (Emphasis
supplied)
xxxx
It was the COMELEC En Banc’s assailed resolution of
September 14, 2012 that later on provided the explanation
to justify the First Division’s resort to the picture images of
the ballots, by observing that the "unprecedented number
of double-votes" exclusively affecting the position of Mayor
and the votes for Saquilayan had led to the belief that the
ballots had been tampered. However, that explanation by
the COMELEC En Banc did not cure the First Division’s
lapse and did not erase the irregularity that had already
invalidated the First Division’s proceedings.
In his dissenting opinion, Justice Antonio T. Carpio
advances the view that the COMELEC’s finding of ballot
tampering was a mere surplusage because there was
actually no need for such finding before the ballots’ digital
counterparts could be used. He cites Section 3, Rule 16 of
COMELEC Resolution No. 8804, as amended by Resolution
No. 9164, which states:
Section 3. Printing of Ballot Images. - In case the parties
deem it necessary, they may file a motion to be approved by
the Division of the Commission requesting for the printing
of ballot images in addition to those mentioned in the
second paragraph of item (e). Parties concerned shall
provide the necessary materials in the printing of images
such as but not limited to copying papers, toners and
printers. Parties may also secure, upon prior approval by
the Division of the Commission, a soft copy of the ballot
images contained in a secured/hashed disc on the
condition that the ballot images be first printed, at the
expense of the requesting party, and that the printed
copies be signed by the parties’ respective revisors or
representatives and by an ERSD IT-capable representative
and deposited with the Commission.
The Over-all chairman shall coordinate with the Director
IV, Election Records and Statistics Department (ERSD), for
the printing of images. Said director shall in turn designate
a personnel who will be responsible in the printing of ballot
images.
Justice Carpio posits that when a party files a motion for
the printing of the ballots that he or she deems necessary,
there is actually no need for a finding of tampering of the
ballots or the ballot boxes before the COMELEC Division
may grant the motion. He states that a determination by
the parties that the printing is necessary under Section 3 is
a ground separate from Section 6(e), which in turn
pertinently states that:
Section 6. Conduct of the Recount –
xxxx
(e) Before the opening of the ballot box, the Recount
Committee shall note its condition as well as that of the
locks or locking mechanism and record the condition in the
recount report. From its observation, the Recount
Committee must also make a determination as to whether
the integrity of the ballot box has been preserved.
In the event that there are signs of tampering or if the
ballot box appears to have been compromised, the Recount
Committee shall still proceed to open the ballot box and
make a physical inventory of the contents thereof. The
committee shall, however, record its general observation of
the ballots and other documents found in the ballot box.
The application of Section 3 to this case is inappropriate,
considering that the First Division did not in any way
suggest in its decision dated August 15, 2010 that it was
resolving Saquilayan’s motion to print the ballot images.
Instead, the First Division made therein a finding of
tampering, thus:
The COMELEC (First Division) took into consideration the
allegations of ballot and ballot box tampering and upon
inspecting the ballot boxes, it is apparent that the integrity
of the ballots had been compromised so, to be able to best
determine the true will of the electorate, we decided to go
over the digital images of the appealed ballots.
Even the COMELEC En Banc did not indicate in its
decision dated September 14, 2012 that the First Division
merely resolved Saquilayan’s motion for the printing of the
ballot images; instead, it reinforced the First Division’s
finding that there was tampering of the ballots. The non-
mention of Saquilayan’s motion was a clear indication of
the COMELEC’s intention to act motu proprio; and also
revealed its interpretation of its very own rules, that there
must be justifiable reason, i.e. tampering, before the ballot
images could be resorted to.
The application of Section 3 would only highlight the First
Division’s denial of Maliksi’s right to due process. For, if
the First Division was really only acting on a motion to
allow the printing of the ballot images, there was a greater
reason for the First Division to have given the parties notice
of its ruling thereon. But, as herein noted, the First
Division did not issue such ruling.
To interpret Section 3 as granting to any one of the parties
the right to move for the printing of the ballot images
should such party deem it necessary, and the COMELEC
may grant such motion, is contrary to its clear wording.
Section 3 explicitly states: "in case the parties deem it
necessary, they may file a motion." The provision really
envisions a situation in which both parties have agreed
that the ballot images should be printed. Should only one
of the parties move for the printing of the ballot images, it
is not Section 3 that applies but Section 6(e), which then
requires a finding that the integrity of the ballots has been
compromised.
The disregard of Maliksi’s right to be informed of the
decision to print the picture images of the ballots and to
conduct the recount proceedings during the appellate stage
cannot be brushed aside by the invocation of the fact that
Maliksi was able to file, after all, a motion for
reconsideration. To be exact, the motion for reconsideration
was actually directed against the entire resolution of the
First Division, while Maliksi’s claim of due process violation
is directed only against the First Division’s recount
proceedings that resulted in the prejudicial result rendered
against him. Notably, the First Division did not issue any
order directing the recount. Without the written order,
Maliksi was deprived of the chance to seek any
reconsideration or even to assail the irregularly-held
recount through a seasonable petition for certiorari in this
Court. In that context, he had no real opportunity to assail
the conduct of the recount proceedings.
The service of the First Division orders requiring
Saquilayan to post and augment the cash deposits for the
printing of the picture images did not sufficiently give
Maliksi notice of the First Division’s decision to print the
picture images. The said orders did not meet the
requirements of due process because they did not
specifically inform Maliksi that the ballots had been found
to be tampered. Nor did the orders offer the factual bases
for the finding of tampering. Hence, to leave for Maliksi to
surmise on the factual bases for finding the need to print
the picture images still violated the principles of fair play,
because the responsibility and the obligation to lay down
the factual bases and to inform Maliksi as the party to be
potentially prejudiced thereby firmly rested on the
shoulders of the First Division.
Moreover, due process of law does not only require notice of
the decryption, printing, and recount proceedings to the
parties, but also demands an opportunity to be present at
such proceedings or to be represented therein. Maliksi
correctly contends that the orders of the First Division
simply required Saquilayan to post and augment his cash
deposit. The orders did not state the time, date, and venue
of the decryption and recount proceedings. Clearly, the
First Division had no intention of giving the parties the
opportunity to witness its proceedings.
Mendoza v. Commission on Elections9 instructs that notice
to the parties and their participation are required during
the adversarial aspects of the proceedings. In that case,
after the revision of the ballots and after the election
protest case was submitted for decision, the ballots and
ballot boxes were transferred to the Senate Electoral
Tribunal (SET) in connection with a protest case pending in
the SET. Mendoza later learned that the COMELEC, with
the permission of the SET, had meanwhile conducted
proceedings within the SET’s premises. Mendoza then
claimed that his right to due process was violated because
he had not been given notice by the COMELEC that it
would be conducting further proceedings within the SET
premises. The Court did not sustain his claim, however,
and pointed out:
After consideration of the respondents’ Comments and the
petitioner’s petition and Reply, we hold that the contested
proceedings at the SET ("contested proceedings") are no
longer part of the adversarial aspects of the election contest
that would require notice of hearing and the participation
of the parties. As the COMELEC stated in its Comment and
without any contrary or disputing claim in the petitioner’s
Reply:
"However, contrary to the claim of petitioner, public
respondent in the appreciation of the contested ballots in
EPC No. 2007-44 simultaneously with the SET in SET Case
No. 001-07 is not conducting "further proceedings"
requiring notice to the parties. There is no revision or
correction of the ballots because EPC No. 2007-04 was
already submitted for resolution. Public respondent, in
coordinating with the SET, is simply resolving the
submitted protest case before it. The parties necessarily
take no part in said deliberation, which require utmost
secrecy. Needless to state, the actual decision-making
process is supposed to be conducted only by the
designated members of the Second Division of the public
respondent in strict confidentiality."
In other words, what took place at the SET were the
internal deliberations of the COMELEC, as a quasi-judicial
body, in the course of appreciating the evidence presented
and deciding the provincial election contest on the merits.
These deliberations are no different from judicial
deliberations which are considered confidential and
privileged. We find it significant that the private
respondent’s Comment fully supported the COMELEC’s
position and disavowed any participation in the contested
proceeding the petitioner complained about. The petitioner,
on the other hand, has not shown that the private
respondent was ever present in any proceeding at the SET
relating to the provincial election contest.1âwphi1
To conclude, the rights to notice and to be heard are not
material considerations in the COMELEC’s handling of the
Bulacan provincial election contest after the transfer of the
ballot boxes to the SET; no proceedings at the instance of
one party or of COMELEC has been conducted at the SET
that would require notice and hearing because of the
possibility of prejudice to the other party. The COMELEC is
under no legal obligation to notify either party of the steps
it is taking in the course of deliberating on the merits of the
provincial election contest. In the context of our standard
of review for the petition, we see no grave abuse of
discretion amounting to lack or excess of jurisdiction
committed by the COMELEC in its deliberation on the
Bulacan election contest and the appreciation of ballots
this deliberation entailed.10 (Emphasis supplied.)
Here, the First Division denominated the proceedings it had
conducted as an "appreciation of ballots" like in Mendoza.
But unlike in Mendoza, the proceedings conducted by the
First Division were adversarial, in that the proceedings
included the decryption and printing of the picture images
of the ballots and the recount of the votes were to be based
on the printouts of the picture images. The First Division
did not simply review the findings of the RTC and the
Revision Committee, but actually conducted its own
recount proceedings using the printouts of the picture
image of the ballots. As such, the First Division was bound
to notify the parties to enable them to participate in the
proceedings.
Significantly, Section 6(l), Rule 15 of COMELEC Resolution
No, 8804, as amended by COMELEC Resolution No. 9164,
requires the parties’ presence during the printing of the
images of the ballots, thus:
xxxx
(l) In the event the Recount Committee determines that the
integrity of the ballots has been violated or has not been
preserved, or are wet and otherwise in such a condition
that it cannot be recounted, the Chairman of the
Committee shall request from the Election Records and
Statistics Department (ERSD), the printing of the image of
the ballots of the subject precinct stored in the CF card
used in the May 10, 2010 elections in the presence of the
parties. Printing of the ballot images shall proceed only
upon prior authentication and certification by a duly
authorized personnel of the Election Records and Statistics
Department (ERSD) that the data or the images to be
printed are genuine and not substitutes.
xxxx
We should not ignore that the parties’ participation during
the revision and recount proceedings would not benefit
only the parties, but was as vital and significant for the
COMELEC as well, for only by their participation would the
COMELEC’s proceedings attain credibility as to the result.
The parties’ presence would have ensured that the requisite
procedures have been followed, including the required
authentication and certification that the images to be
printed are genuine. In this regard, the COMELEC was less
than candid, and was even cavalier in its conduct of the
decryption and printing of the picture images of the ballots
and the recount proceedings. The COMELEC was merely
content with listing the guidelines that the First Division
had followed in the appreciation of the ballots and the
results of the recount. In short, there was vagueness as to
what rule had been followed in the decryption and printing
proceeding.
II.
Remand to the COMELEC
We are mindful of the urgent need to speedily resolve the
election protest because the term of the position involved is
about to end. Thus, we overlook pro hac vice the lack of
factual basis for the COMELEC’s decision to use the digital
images of the ballots and sustain its decision thereon.
Although a remand of the election protest to the RTC would
have been the appropriate procedure, we direct the
COMELEC En Banc instead to conduct the decryption and
printing of the digital images of the ballots and to hold
recount proceedings, with due notice to all the parties and
opportunity for them to be present and to participate
during such proceedings. Nothing less serves the ideal
objective safeguarded by the Constitution.
In the absence of particular rules to govern its proceedings
in accordance with this disposition, the COMELEC is urged
to follow and observe Rule 15 of COMELEC Resolution No.
8804, as amended by COMELEC Resolution No. 9164.
The Court, by this resolution, does not intend to validate
the victory of any of the parties in the 2010 Elections. That
is not the concern of the Court as yet. The Court simply
does not want to countenance a denial of the fundamental
right to due process, a cornerstone of our legal
system.11 After all, it is the Court’s primary duty to protect
the basic rights of the people vis-à-vis government actions,
thus:
It cannot be denied that most government actions are
inspired with noble intentions, all geared towards the
betterment of the nation and its people. But then again, it
is important to remember this ethical principle: "The end
does not justify the means." No matter how noble and
worthy of admiration the purpose of an act, but if the
means to be employed in accomplishing it is simply
irreconcilable with constitutional parameters, then it
cannot still be allowed. The Court cannot just turn a blind
eye and simply let it pass. It will continue to uphold the
Constitution and its enshrined principles.12
WHEREFORE, the Court PARTIALLY GRANTS the
Extremely Urgent Motion for Reconsideration of petitioner
Emmanuel Maliksi; REVERSES the Court's decision
promulgated on March 12, 2013; and DIRECTS the
Commission on Elections En Bane to conduct proceedings
for the decryption of the picture images of the ballots
involved in the protest after due authentication, and for the
recount of ballots by using the printouts of the ballot
images, with notice to and in the presence of the parties or
their representatives in accordance with the procedure laid
down by Rule 15 of COMELEC Resolution No. 8804, as
amended by Resolution No. 9164.
No pronouncement on costs of suit.
SO ORDERED.
G.R. No. 122391 August 7, 1997
FELIPE L. LAODENIO, petitioner,
vs.
COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD
OF CANVASSERS OF MAPANAS, NORTHERN SAMAR
and ROGELIO LONGCOP, respondents.
BELLOSILLO, J.:
FELIPE L. LAODENIO, petitioner, and ROGELIO
LONGCOP, respondent, were candidates for the position of
Mayor of Mapanas, Northern Samar, during the 8 May
1995 elections. On 15 May 1995 Longcop was proclaimed
winner by the Municipal Board of Canvassers.
On 20 May 1995 Laodenio filed a petition with respondent
Commission on Elections (COMELEC) to annul the
proclamation of Longcop and to declare illegal the
constitution of the Municipal Board of Canvassers as well
as its proceedings. He alleged in his petition that —
During the canvass, respondent board of
canvassers adjourned repeatedly starting May 9,
1995, after the poll clerk of precinct no. 7-A
testified before the Board that the election returns
for the said precinct was tampered with and
falsified to increase the total votes cast in favor of
respondent Longcop from 88 to 188.
On 10 May 1995, the Board resumed its canvass
but it adjourned again at past 5:00 o'clock in the
afternoon as it has (sic) not yet decided on what to
do with the election returns for precinct (sic) nos.
7-A and 5-A. When it adjourned on May 10, 1995
it announced that it will (sic) only resume canvass
on 12 May 1995 at the capital town of Catarman,
Northern Samar. The Board however reconvened
on 12 May 1995 in Mapanas and proceeded with
the canvass. The respondent board thereafter
adjourned and surreptitiously reconvened on 15
May 1995, with a new chairman who was
allegedly appointed by the Provincial Election
Supervisor.
When the election returns from Precinct (sic) Nos.
5-A and 7-A were (sic) about to be canvassed,
petitioner manifested his oral objections thereto
and likewise submitted his written objection on
the same day, 12 May 1995.
The respondent board however did not give the
petitioner opportunity of file an appeal (from?) its
decision to proceed with the canvass of the
election returns from precinct (sic) nos. 7-A and 5-
A.
The respondent board of canvassers was informed
by Elie Acquiat (poll clerk) that the election
returns from precinct no. 7-A was tampered, and
the votes for the respondent Longcop was
increased from 88 to 188. Similarly, the BEI
Chairman of Precinct 5-A Arnulfo Nueva and the
third member Dolor Rowena informed the board of
canvassers that the election returns from precinct
5-A was tampered by increasing the votes for the
respondent Longcop from 117 to 173. With the
testimony of those witnesses, the board should
have proceeded in accordance with Section 235 of
the Omnibus Election Code but the board
disregarded the clear mandate of the law and
closed its eyes to the overwhelming evidence of
falsification and lent its hand to the
consummation by canvassing the falsified election
returns. 1
On 25 May 1995 petitioner filed an election protest before
the Regional Trial Court.
On 28 August 1995 respondent COMELEC dismissed the
petition of Laodenio for lack of merit. 2 It was of the view
that the adjournments were justified and were not
improperly prolonged as claimed by petitioner; he was in
fact deemed to have acquiesced to the new composition of
the Municipal Board of Canvassers when he actively
participated in the proceedings therein; there was no
showing that he manifested on time his intent to appeal the
rulings of the Board, neither was there any proof that he
appealed therefrom; and, on the authority of Padilla
v. Commission on Elections 3 the pre-proclamation
controversy was no longer viable since Longcop had already
been proclaimed and had assumed office. On 23 October
1995 the motion for reconsideration was denied. 4
Petitioner raises these issues: (1) The direct filing of a
petition with COMELEC to contest the illegal conduct of the
Board of Canvassers is allowed under Rule 27, Sec. 4, of
the COMELEC Rules of Procedure; and, (2) The pre-
proclamation controversy was not rendered moot and
academic by the filing of an ordinary election protest.
Laodenio claims that a petition may be filed directly with
COMELEC pursuant to Rule 27, Sec. 4, of the COMELEC
Rules of Procedure when, as in this case, the issue involves
the illegal composition of the Board of Canvassers or the
canvassing was a ceremony that was pre-determined and
manipulated to result in nothing but a sham proceeding
and there was disregard of manifest irregularities in the
questioned returns. In particular, petitioner argues that the
Board was illegally constituted on 15 May 1995 since the
new Chairman was appointed merely by the Provincial
Election Supervisor and not by respondent COMELEC, in
clear contravention of Sec. 10 of COMELEC Resolution No.
2756. Also, the Board proceeded illegally when it canvassed
tampered election returns unmindful of Sec. 235 of the
Omnibus Election Code which refers to election returns
that appear to be tampered with or falsified.
This arguments is devoid of merit. Apparently, it emanates
from a misapprehension of the applicability of certain
election laws. Sec 17 of R.A. 7166 5 provides —
Sec. 17. Pre-proclamation Controversies:
How Commenced. — Questions affecting
the composition or proceedings of the
board of canvassers may be initiated in
the board or directly with the
Commission. However, matters raised
under Sections 233, 234, 235 and 236 of
the Omnibus Election Code in relation to
the preparation, transmission, receipt,
custody and appreciation of the election
returns, and the certificates of canvass
shall be brought in the first instance
before the board of canvassers only.
As evidenced by the Minutes of the Board, petitioner indeed
raised the matter of illegal composition of the Board at the
first instance before said Board when his counsel
questioned the authority of the new Chairman. However,
after seeing the notice of the Provincial Election Supervisor,
his counsel agreed to the opening of the canvassing. In
fact, petitioner thereafter actively participated in the
proceedings. Consequently, COMELEC concluded that —
. . . . Such acts could be justifiably taken
as acquiescence to the new composition
of the Board. Otherwise, had he felt
aggrieved thereby, he should have
elevated the issue on appeal to the
Commission . . . . 6
Particularly, Sec. 19 of R.A. 7166 provides —
 Sec. 19. Contested Composition or suspend the canvass. Within forty-eight
Proceedings of the Board; Period to (48) hours therefrom, any party
Appeal; Decision by the Commission. — adversely affected by the ruling may file
Parties adversely affected by a ruling of with the board a written and verified
the board of canvassers on questions notice of appeal; and within an
affecting the composition or proceedings unextendible period of five (5) days
of the board may appeal the matter to thereafter, an appeal may be taken to the
the Commission within three (3) days Commission.
from a ruling thereon . . . .
The Minutes of the Board revealed the following facts —
Although Sec. 17 of R.A. 7166 and Sec. 5 par. (a)(1) (not
Sec. 4 as erroneously cited by petitioner), of Rule 27 of the
May 10, 1995 — The Board resumes at
COMELEC Rules of Procedure also allow filing of a petition
8:00 a.m. Precinct 7-A, Jubasan, was
directly with respondent COMELEC when the issue
received by the Board. While the Board
involves the illegal composition of the Board, Sec. 5, par.
was about to open said returns, a
(b), of the same Rule requires that it must be filed
written protest was filed by Laodenio.
immediately when the Board begins to act as such, or at
The protest was for two precincts;
the time of the appointment of the member whose capacity
precinct 7-A and precinct 5-A; informing
to sit as such is objected to if it comes after the canvassing
the board to stop counting on the ground
of the Board, or immediately at the point where the
that the returns are (sic) tampered.
proceedings are or begin to be illegal. In the present case,
Although the protest was not in proper
the petition was filed five (5) days after respondent Longcop
form, the Board deferred the canvass of
had been proclaimed by the Board. At any rate, the real
said return to give protestant enough
issue appears to be — not what it appears to petitioner —
time to present his evidence.
whether he can still dispute the composition of the Board
after having actively participated in the proceedings
therein. In this regard, we sustain respondent COMELEC. After a thorough discussion of the two
legal counsel, the members of the board
of canvassers denied the objections of
Section 20 of R.A. 7166 (not Sec. 235 of the Omnibus
Laodenio on the ground that an oral
Election Code as mistakenly invoked by petitioner) outlines
objection should simultaneously be filed
the procedure in the disposition of contested election
with a written objection in a proper form.
returns —
Majority of the board voted for the
inclusion of the returns from precinct 7-
Sec. 20. Procedure in Disposition of A on the ground that the protest was not
Contested Election Returns. — (a) Any in proper form. The parties were notified
candidate, political party or coalition of of the ruling of the Board in open
political parties contesting the inclusion session. The Chairman of the Board
or exclusion in the canvass of any start(ed?) to open the envelope
election returns on any of the grounds of precinct no. 7-A and the same was
authorized under Article XX or Section examined by counsel of the both
234, 235 and 236 of Article XIX of the parties. 7
Omnibus Election Code shall submit
their oral objection to the chairman of
The Board, upon examination of the returns from precinct
the board of canvassers at the time the
7-A; found it to be inside an envelope with serial no.
questioned return is presented for
073983 signed by all the members of the Board and with
inclusion in the canvass. Such objection
paper seal no. 516478 likewise signed by all of them. The
shall be recorded in the minutes of the
returns bore the respective signatures and thumbmarks of
canvass.
the poll clerk, the third member and all six watchers. The
Minutes disclosed further —
xxx xxx xxx
May 12, 1995, at 2:00 p.m., the
(c) Simultaneous with the oral objection, members of the Board resume to
the objecting party shall also enter his canvass the election returns for precinct
objection in the form for written 7-A. It was supposed to canvass last May
objections to be prescribed by the 10, 1995, but was deferred because the
Commission. Within twenty-four (24) Board waited for protestant Laodenio to
hours from and after the presentation of file his appeal from our ruling on May
such an objection, the objecting party 10, 1995. Since there was no appeal, the
shall submit the evidence in support of Board proceeded with the canvass of
the objection . . . . The board shall not precinct 7-A.
entertain any objection or opposition
unless reduced to writing in the
At 2:37 p.m., Laodenio filed his protest
prescribed forms . . . .
in proper form but the board denied the
protest on the ground that it was filed
(d) Upon receipt of the evidence, the out of time. The protest was filed after
board shall take up the contested the canvass of the election returns was
returns, consider the written objection completed. 8
thereto and opposition, if any, and
summarily and immediately rule
With regard to the action of the Board on the election
thereon. The board shall enter its ruling
returns from precinct 5-A, the Minutes narrated as follows
on the prescribed form and authenticate
—
the same by the signatures of its
members.
Precinct 5-A. — An envelope with serial
no. 073973 signed by all the members of
(e) Any party adversely affected by the
the board with paper seal. The envelope
ruling of the board shall immediately
is in good condition. The election returns
inform the board if he intends to appeal
was properly signed by all members of
said ruling. The board shall enter said
the board with their thumbmarks and
information in the minutes of the
the watchers have also their signatures
canvass . . . .
and thumbmarks in the corresponding
spaces. An oral protest was filed by
(f) After all the uncontested returns have petitioner. At 4:49 p.m., a protest in
been canvassed and the contested prescribed form was filed. At 8:00 p.m.,
returns ruled upon by it, the board shall the Board of Canvassers voted as
 follows: The chairman for exclusion and
the two members for inclusion because
on its face the election returns does not
have any sign of tampering and that
when the election returns copy for the
Municipal Trial Court was opened to
compare with the contested returns the
entries are (sic) the same. The parties
were informed of the ruling in open
session. After the ruling, the protestant
did not indicate his intention to appeal. 9
Clearly, the proceedings of the Board were in accordance
with law.
Petitioner argues next that the election protest was filed ad
cautelam or as a precautionary measures to preserve his
rights which did not thereby oust respondent COMELEC of
jurisdiction. He invokes Samad v. COMELEC 10 where it
was held that, as a general rule, the filing of an election
protest or a petition for quo warranto precludes the
subsequent filing of a pre-proclamation controversy or
amounts to the abandonment of one earlier filed, thus
depriving the COMELEC of the authority to inquire into
and pass upon the title of the protestee or the validity of
his proclamation. The reason is that once the competent
tribunal has acquired jurisdiction of an election protest or
a petition for quo warranto all question relative thereto will
have to be decided in the case itself and not in another
proceeding, otherwise, there will be confusion and conflict
of authority. Conformably therewith, we have ruled in a
number of cases that a proclamation has been made a pre-
proclamation case before the COMELEC is, logically, no
longer viable. 11 The rule admits of exceptions, however, as
where: (a) the board of canvassers was improperly
constituted; (b) quo warranto was not the proper remedy;
(c) what was filed was not really a petition for quo
warranto or an election protest but a petition to annul a
proclamation; (d) the filling of a quo warranto petition or an
election protest was expressly made without prejudice to
the pre-proclamation controversy or was made ad
cautelam; and, (e) the proclamation was null and void.
Petitioner relies on the fourth exception and
invokes Agbayani v. Commission on Elections 12 where the
Court found that petitioner's real intention in filing the
election protest ad cautelam was to insure the preservation
of all the ballot boxes used in the local elections: Thus —
Under COMELEC Res. No. 2035 dated
September 7, 1988, all such ballot boxes
would be made available for the then
forthcoming barangays elections as long
as they were not involved in any pre-
proclamation controversy, election
protest or official investigation. As the
above-mentioned cases involved only
nine precincts, it was only prudent for
the petitioner to file his protest ad
cautelam in case the pre-proclamation
controversy was ultimately dismissed
and it becomes necessary for him to
activate his protest. The protest would
involve all the precincts in the province.
If he had not taken this precaution, all
the other ballots boxes would have been
emptied and their contents would have
been burned and forever lost.
But, a distinction must be drawn between Agbayani and
the instant case. Petitioner here simply alleges that the
election protest was filed as a precautionary measure to
preserve his rights without bothering to elaborate thereon.
There is no reason at all for the exception to apply in the
case before us. Rather, COMELEC's reliance on Padilla is
the more appropriated remedy. 13 Respondent Longcop
having been proclaimed and having assumed office —
. . . . pre-proclamation controversy is no
longer viable at this point of time and
should be dismissed . . . . Pre-
proclamation proceedings are summary
in nature. These was no full-dress
hearing essential to the task of
adjudication with respect to the serious
charges of "irregularities," etc., made by
petitioner. An election contest would be
the most appropriate remedy. Instead of
the submission of mere affidavits, the
parties would be able to present
witnesses subject to the right of
confrontation, etc. Recourse to such
remedy would settle the matters in
controversy "conclusively and once and
for all.
In the absence of any jurisdictional infirmity or error of
law, the conclusion reached by respondent COMELEC on a
matter that falls within its competence and primary
jurisdiction is entitled to utmost respect. 14
WHEREFORE, the petition is DISMISSED. The Resolution
of respondent Commission on Elections of 28 August 1995
dismissing the pre-proclamation controversy as well as its
Resolution denying reconsideration thereof is AFFIRMED.
SO ORDERED.
G.R. No. 141952-53 April 20, 2001
RODOLFO DUMAYAS, JR., petitioner,
vs.
COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD
OF CANVASSERS OF THE MUNICIPALITY OF CARLES,
PROVINCE OF ILOILO and FELIPE BERNAL,
JR., respondents.
QUISUMBING, J.:
In this special civil action, petitioner Rodolfo Dumayas, Jr.,
seeks to nullify the Resolution promulgated March 2, 2000
by the Commission on Elections (COMELEC) en banc,
reversing that of the Second Division dated August 4, 1998,
which annulled the petitioner’s proclamation as Municipal
Mayor of Carles, Iloilo.
The antecedent facts of the case, as found by the
COMELEC en banc, are as follows:
Petitioner Dumayas, Jr. and respondent
Bernal, Jr. were rival candidates for the
position of mayor in Carles, Iloilo last 11
May 1998 synchronized
elections.1âwphi1.nêt
During the canvassing on 13 May 1998,
election returns for precinct nos. 61A,
62A, and 63A/64A all of Barangay
Pantalan was protested for inclusion in
the canvass before the Municipal Board
of Canvassers (MBC for brevity) by
petitioner-appellant Dumayas Jr. The
grounds relied upon for their exclusion
are all the same- that is, "violation of
Secs. 234, 235, 236 of the Omnibus
Election Code and other election laws;
acts of terrorism, intimidation, coercion,
and similar acts prohibited by law."
Appellant Dumayas, Jr. submitted his
evidence to the Board of Canvassers on
14 May 1998 which consist of (a) the
joint affidavits executed by LAMMP
watchers for precinct 61A: Teresita
Oblido, Reyland de la Rosa, and
Armando Flores [signed by Oblido and
Flores only]; (b) affidavit of petitioner’s
supporter Virgilisa Capao; (c) joint
affidavit of precinct 63A – watcher Nona
Dichosa and precinct 62A – watcher
Daniel Carmona; (d) blotter report dated
12 May 1998 of Carles PNP, Iloilo; and
(d) corroborating affidavit of LAMMP
supporter Honorato Gallardo.
All the affidavits submitted by petitioner
contain similar attestations such as:
certain local barangay (sic) officials were
inside the polling place during the
casting and counting of votes, or acted
as watcher of respondent; SPO3 Gilbert
Sorongon who was in shorts and t-shirt
armed with an armalite roamed around
and inside the polling places; a CVO in
uniform was roaming precinct 63A; the
presence of the public officials posed
threat and intimidation driving most of
the watchers of other political parties
away; the BEIs were so intimidated and
coerced that no election return was
prepared simultaneous with the tallying;
the election returns were prepared under
duress; the voters were coerced to vote
for certain favored candidates especially
herein respondent; petitioner’s watchers
were made to sign or affix their
thumbmarks on the already prepared
election returns; in precinct 63A/64A, the
voting ended at almost 9:00 P.M. without
the BEI members writing the names of
such voters.
Petitioner also submitted a certification
issued by PO3 Tito Billones, Desk Officer
of PNP Carles representing the blotter
report (extracted from the police log
book) which states that on 12 May 1998,
Virgilisa Capao reported to the Police
Station of Carles, Iloilo that PO3
Sorongon and Brgy. Capt. Mahilum
entered Precinct 63A with (sic) the
company of other CVO and Brgy.
Kagawad during election. And that these
people gravely intimidated the voters by
telling them the names of the candidates
they should vote for. It also states that
PO3 Sorongon was not in his prescribed
uniform when seen with hand grenades
hanging on his neck and carrying an
armalite roaming inside and outside the
polling place.
On the other hand, respondent Bernal,
Jr. in vehemently denying the allegations
of petitioner, submitted joint affidavits of
the members of the different Boards of
Election Inspectors for precinct nos. 61A,
62A and 63A/64A.
xxx
All the supplemental affidavits of the
different BEIs categorically declared that
the elections in their respective precincts
"starting from the start of the voting to its
closing, to the counting of votes and to the
preparation and submission of election
returns" were peaceful, clean, orderly and
no acts of terrorism, intimidation,
coercion and similar acts prohibited by
law was (sic) exerted on anybody
including the voters and members of the
BEIs. They all attested that the incidents
alleged by petitioner’s watchers did not
happen. The alleged terrorism, coercion,
or violation of election laws like the
opening of ballots and reading the votes
allegedly done by certain public officials
like SPO3 Sorongon, Nody Mahilum,
Anonia Barrios, Telesforo Gallardo and
others are not true, the truth being that
these people were only inside the polling
place to exercise their right of suffrage.
They also vehemently denied that the
election returns were not simultaneously
prepared with the tallying and counting
of votes. They stressed that as public
school teachers, they cannot risk their
future and career and will not allow or
tolerate anybody to make a mockery of
the electoral process to (sic) which they
were duly sworn to uphold.
Nody Mahilum and PO3 Gilbert
Sorongon also executed a joint affidavit
denying the accusations of Dumayas, Jr.
and his watchers stating therein that
they only entered their respective
precinct-polling place in order to exercise
their right of suffrage and that the
election in the three precincts of
Barangay Pantalan was orderly,
peaceful, and honest which (sic) truly
reflects the will of the electorate.
x x x1
In the afternoon of May 14, 1998, the Municipal Board of
Canvassers denied petitioner’s objection to the inclusion of
the contested returns and proceeded with the canvass. The
results of the voting were as follows:
DUMAYAS
CONTESTED PRECINCTS
Prec. 61A 44
Prec. 62A 43
Prec. 63A/64A (clustered) 54
Uncontested prec[incts] total 7,636
Over all total 7,777
Petitioner filed a Notice of Appeal before the MBC on May
15, 1998. The appeal was given due course by the
COMELEC Second Division3 which rendered a resolution
dated August 4, 1998, disposing as follows:
WHEREFORE, finding the preparation of
the contested election returns to be
tainted with irregularities, this
Commission (SECOND DIVISION)
RESOLVED, as it hereby RESOLVES, to
EXCLUDE Election Return No. 3000976
from Precinct No. 61-A; Election Return
No. 3000977 from Precinct No. 62-A; and
Election return No. 3000978 from
Precinct Nos. 63-A/64-A (clustered).
Respondent Mun(i)cipal Board of
Canvassers is hereby directed to
RECONVENE and FINISH the canvass of
the remaining or uncontested returns
and thereafter, PROCLAIM the winning
mayoralty candidate of Carles, Iloilo.
SO ORDERED.4
On August 10, 1998, private respondent Felipe Bernal, Jr.,
filed a motion for reconsideration of the above-cited
resolution with the COMELEC en banc.
On August 12, 1998, an order certifying that the motion for
reconsideration and records of the case were elevated to the
COMELEC en banc was signed by Commissioner Julio F.
Desamito and issued by the Clerk of the Commission.
Pending resolution of the motion for reconsideration and
pursuant to the resolution of the COMELEC Second
Division, Election Officer Rolando Dalen set the
reconvening of the MBC on August 13, 1998, for the
continuation of canvass proceedings and proclamation of
winning candidates for Vice-Mayor and Municipal
Councilors of Carles, Iloilo. No winner for the position of
Mayor was proclaimed since private respondent was able to
present a copy of his motion for reconsideration before the
MBC. The MBC then reset the date for reconvening of the
board on August 17, 1998, after confirming by phone with
COMELEC-Manila that a motion for reconsideration was
indeed filed by private respondent. Thereafter, the MBC
ruled that proclamation of the winning candidate for Mayor
would proceed on August 17, 1998 unless private
respondent could present a certification from the
COMELEC that the motion for reconsideration was elevated
to the COMELEC en banc.
On August 17, 1998, despite presentation of the August
12, 1998 order, petitioner was proclaimed winner of the
election after excluding from the canvass the election
returns from the three contested precincts in accordance
with the COMELEC Second Division Resolution. The MBC,
with its Vice-Chairman dissenting, justified its act by
reasoning that it did not receive an official copy of the order
directing the elevation of the case to the banc.
The following day, private respondent immediately filed an
urgent motion to declare void ab initio the proclamation of
petitioner on the ground that the resolution of the
COMELEC Second Division was not yet final and
executory. For his part, petitioner opposed both the motion
for reconsideration and motion to declare void ab initio his
proclamation as Mayor of Carles, asserting that private
respondent failed to show palpable errors to warrant
reconsideration of said resolution and maintaining, at the
same time, that his proclamation was legal since
respondent failed to produce the certification required by
the MBC.
Meanwhile, on August 25, 1998, the duly-proclaimed Vice-
Mayor Arnold Betita filed an action for quo
warranto5 against petitioner before the Regional Trial Court
of Iloilo, Branch 66. Docketed as Spl. Civil Action No. 98-
141, said petition included respondent Bernal as one of the
petitioners together with Vice-Mayor Betita.
On September 18, 1998, petitioner filed before the
COMELEC en banc a motion to expunge respondent
Bernal’s motion for reconsideration and motion to declare
petitioner’s proclamation void ab initio, on the ground that
respondent Bernal should be deemed to have abandoned
said motions by the filing of Spl. Civil Action No. 98-141
which, according to petitioner, is a formal election protest
via quo warranto brought before the regular courts.
In a resolution dated August 24, 1999 but promulgated on
March 2, 2000, the COMELEC en banc denied petitioner’s
motion to expunge, thus:
WHEREFORE, premises considered, the
Resolution of the Second Division is
hereby REVERSED and SET ASIDE and
the proclamation of Rodolfo Dumayas,
Jr. is hereby ANNULLED. A new
Municipal Board of Canvassers of Carles,
Iloilo is hereby constituted with the
following members: Atty. Nelia Aureus,
Chairman; Atty. Rosel Abad, Vice-
Chairman; and Atty. Manuel Lucero,
Third Member – all of Election Contests
and Adjudication Department of the
Commission. They are directed to
convene at Session Hall of the COMELEC
– Main Office, Manila on the tenth (10th)
day from the date of promulgation of this
Resolution with notice to the parties. The
new board of canvassers shall complete
the canvassing of all the returns and
proceed with the proclamation of the
true winner for the position of mayor of
Carles, Iloilo. Petitioner Rodolfo
Dumayas, Jr. is hereby directed to cease
and desist from performing the functions
of the office of mayor of Carles, Iloilo.
Election Officer Rolando Dalen is hereby
directed to bring to the Commission’s
Main Office the election returns of
Carles, Iloilo which need to be canvassed
and the other election documents
necessary for the canvassing and
proclamation and turn them over to the
new board of canvassers.1âwphi1.nêt
The Law Department is directed to
investigate the election offense allegedly
committed by PO3 Gilbert Sorongon on
election day.
Let the Deputy Executive Director for
Operations of the Commission
implement this Resolution with dispatch
giving a copy thereof to the Secretary of
the Department of Interior and Local
Government.
SO ORDERED.6
On March 13, 2000, respondent Bernal, Jr. was proclaimed
by the newly-constituted Municipal Board of Canvassers as
the duly-elected Mayor of the Municipality of Carles,
thereby unseating petitioner Dumayas.
Hence, this instant special civil action where he alleges
that:
A. RESPONDENT COMMISSION ERRED IN NOT
HOLDING THAT, PRIVATE RESPONDENT FELIPE
BERNAL JR. IS DEEMED TO HAVE ABANDONED
HIS MOTION FOR RECONSIDERATION BEFORE
THE COMMISSION ON ELECTION EN BANC
CONSIDERING THAT PRIVATE RESPONDENT,
TOGETHER WITH ARNOLD BETITA FILED AN
ELECTION CASE THRU A QUO WARRANTO,
BEFORE THE REGIONAL TRIAL COURT OF
ILOILO BRANCH 66, DOCKETED AS CASE NO.
98-141.
B. RESPONDENT COMMISSION ERRED IN
UPHOLDING THE INCLUSION FOR CANVASS
THE THREE ELECTION RETURNS FOR
PRECINCT NOS. 61-A, 62-A, and 63-A/64-A
(CLUSTERED) BY THE MUNICIPAL BOARD OF
CANVASSERS OF CARLES, ILOILO
NOTWITHSTANDING THE FACT THAT THERE IS
CLEAR AND SUFFICIENT EVIDENCE TO SHOW
THAT THE ELECTION RETURNS FOR THESE
THREE PRECINCT(S) WERE PREPARED UNDER
DURESS AND NOT PREPARED
SIMULTANEOUSLY WITH THE COUNTING OF
VOTES.
C. THE RESOLUTION PROMULGATED ON MARCH
2, 2000 IS ILLEGAL AS IT WAS VIOLATIVE OF
ARTICLE IX (A) SECTION 7 OF THE
CONSTITUTION CONSIDERING THAT ONLY
FOUR COMMISSIONERS VOTED TO REVERSE
THE RESOLUTION DATED AUGUST 4, 1998 OF
THE SECOND DIVISION COMMISSION ON
ELECTION AND THAT, TWO COMMISSIONER(S)
HAVE ALREADY RETIRED, AT THE TIME OF THE
PROMULGATION.7
The following are the issues to be resolved: (1) Should
respondent Bernal, who was named as petitioner in the quo
warranto proceedings commenced before the regular court,
be deemed to have abandoned the motions he had filed
with respondent Commission? (2) Did the COMELEC err in
ordering the inclusion of the contested election returns in
the canvassing of ballots? (3) In view of the retirement of
Commissioners Gorospe and Guiani before the date of the
promulgation of the assailed resolution on March 2, 2000,
should said resolution be deemed null and void for being
violative of Article IX-A, Section 7 of the 1987 Constitution?
We shall first discuss the third issue. Petitioner claims that
March 2, 2000 Resolution of the COMELEC is void because
Commissioners Manolo Gorospe and Japal Guiani have
already retired on the date of its promulgation, even if they
had participated earlier in the deliberations of the case and
signed the resolution dated August 24, 1999. Petitioner
submits that this defect invalidated the entire decision of
the Commission and that accordingly, a new vote should be
taken to settle the matter.
In Jamil vs. Commission on Elections,8 we held that a
decision becomes binding only after its promulgation. If at
the time it is promulgated, a judge or member of the
collegiate court who had earlier signed or registered his
vote has vacated office, his vote on the decision must
automatically be withdrawn or cancelled. Accordingly, the
votes of Commissioners Gorospe and Guiani should merely
be considered as withdrawn for the reason that their
retirement preceded the resolution’s promulgation. The
effect of the withdrawal of their votes would be as if they
had not signed the resolution at all and only the votes of
the remaining commissioners would be properly considered the ground of illegality and prematurity. This conclusion is
for the purpose of deciding the controversy. consistent with the rule that the nature of the action is
determined by the averments in the complaint or
petition13 and not the title or caption thereof. The material
However, unless the withdrawal of the votes would
stipulations of the petition substantially state:
materially affect the result insofar as votes for or against a
party is concerned, we find no reason for declaring the
decision a nullity. In the present case, with the cancellation 13. That when the Board of
of the votes of retired Commissioners Gorospe and Guiani, Canvassers convened in the
the remaining votes among the four incumbent afternoon and despite the
commissioners at the time of the resolution’s promulgation submission of the copy of the
would still be 3 to 1 in favor of respondent. Noteworthy, order certifying the Motion for
these remaining Commissioners still constituted a quorum. Reconsideration to the
In our view, the defect cited by petitioner does not affect COMELEC En Banc and in
the substance or validity of respondent Commission’s violation of the Comelec Rules
disposition of the controversy. The nullification of the and Procedure and due to the
challenged resolution, in our view, would merely prolong threat received by the Board,
the proceedings unnecessarily. Mr. Dalen, the Chairman of the
Board and Mr. Serafin Provido,
Jr. signed the Certificate of
Now, regarding the first issue raised by petitioner. Did
Proclamation proclaiming
respondent Bernal effectively abandon his pending motions
respondent as winner of the
before the COMELEC en banc by the filing of Spl. Civil
elections for Mayor. Mr. Deony
Action No. 98-141? Petitioner’s contention that Bernal did
Cabaobao did not signed (sic)
appears to us untenable.
the said Certificate of
Proclamation as he dissented to
As a general rule, the filing of an election protest or a (sic) the decision to proclaim
petition for quo warranto precludes the subsequent filing of respondent;
a pre-proclamation controversy or amounts to the
abandonment of one earlier filed, thus depriving the
14. The proclamation, therefore,
COMELEC of the authority to inquire into and pass upon
of respondent is illegal and null
the title of the protestee or the validity of his proclamation.
and void from the very
The reason for this rule is that once the competent tribunal
beginning for it was done in
has acquired jurisdiction of an election protest or a petition
violation of law and under
for quo warranto, all questions relative thereto will have to
duress. The affidavit of Mr.
be decided in the case itself and not in another proceeding,
Serafin Provido, Jr. a member
so as to prevent confusion and conflict of authority.9
of the Board of Canvassers
showing duress is hereto
Nevertheless, the general rule is not absolute. It admits of attached as Annex "C";
certain exceptions, as where: (a) the board of canvassers
was improperly constituted; (b) quo warranto was not the
15. On account of the illegal
proper remedy; (c) what was filed was not really a petition
proclamation of the respondent
for quo warranto or an election protest but a petition to
said proclamation does not vest
annul a proclamation; (d) the filing of a quo
any right or authority for him to
warranto petition or an election protest was expressly made
sit as Mayor of the town of
without prejudice to the pre-proclamation controversy or
Carles thus when he sits as
was made ad cautelam; and (e) the proclamation was null
such Mayor he usurps,
and void.10
intrudes into, and unlawfully
holds and exercise(s) a public
An examination of the petition filed primarily by Vice- office without authority;
Mayor Betita with the Regional Trial Court of Iloilo City
reveals that it is neither a quo warranto petition under the
16. The authority to act as
Omnibus Election Code nor an election protest. In Samad
mayor for and in the absence of
vs. COMELEC11 , we explained that a petition for quo
the duly proclaimed mayor is
warranto under the Omnibus Election Code raises in issue
vested on petitioner Betita
the disloyalty or ineligibility of the winning candidate. It is
pursuant to law;
a proceeding to unseat the respondent from office but not
necessarily to install the petitioner in his place. An election
protest is a contest between the defeated and winning 17. That the continued
candidates on the ground of frauds or irregularities in the unlawful exercise by the
casting and counting of the ballots, or in the preparation of respondent of the position of
the returns. It raises the question of who actually obtained mayor of the town of Carles will
the plurality of the legal votes and therefore is entitled to cause great and irreparable
hold the office. damage to the
petitioners, particularly
petitioner Betita, who pursuant
The allegations contained in Betita’s petition before the
to law is entitled to act as Mayor
regular court do not present any proper issue for either an
of the town of Carles and the
election protest or a quo warranto case under the Omnibus
people of Carles who pays his
Election Code. Spl. Civil Action NO. 98-141 appears to be
salaries unless he be restrained
in the nature of an action for usurpation of public office
or enjoined from siting (sic) as
brought by Betita to assert his right to the position of
such Mayor;
Mayor pursuant to the rules on succession of local
government officials contained in the Local Government
Code.12 Although said petition is also denominated as a quo xxx 14

warranto petition under Rule 66 of the Rules of Court, it is

different in nature from the quo warranto provided for in
Thus, respondent Commission did not err, much less
the Omnibus Election Code where the only issue proper for
abuse its discretion, when it refused to consider as
determination is either disloyalty or ineligibility of
abandoned Bernal’s motion for reconsideration and urgent
respondent therein. Neither can it be considered as an
motion to declare petitioner’s proclamation as void ab initio.
election protest since what was put forth as an issue in
Note that under the allegations cited above, the
said petition was petitioner’s alleged unlawful assumption
determination of Betita’s right would ultimately hinge on
of the office of Mayor by virtue of his alleged illegal
the validity of petitioner’s proclamation in the first place. To
proclamation as the winning candidate in the election.
repeat, the "quo warranto" petition brought by Vice-Mayor
Betita is a petition to annul petitioner’s proclamation over
A closer look at the specific allegations in the petition which COMELEC exercises original exclusive jurisdiction.
disclose that Spl. Civil Action No. 98-141 is actually an Consequently, it could not be deemed as a proper remedy
action for the annulment of petitioner’s proclamation on
in favor of respondent Bernal, Jr. even if his name was
included in the title of said petition.

We now consider whether the MBC’s proclamation of

petitioner Dumayas as the winning candidate in the 1998
mayoralty election is null and void. For where a
proclamation is null and void, it is no proclamation at all
such that the proclaimed candidate’s assumption of office
cannot deprive the COMELEC of the power to declare such
nullity and annul the proclamation.15

Although petitioner’s proclamation was undertaken

pursuant to the resolution of the COMELEC’s Second
Division, it appears plain to us that the latter grievously
erred in ordering the exclusion of the contested returns
from Precincts 61A, 62A and 63A/64A (clustered). On this
score, the Comelec en banc correctly reversed the Second
Division by holding that petitioner Dumayas failed to
justify the exclusion of said returns on the ground of
duress, intimidation, threat or coercion. We note that the
only evidence submitted by petitioner to prove said
irregularities were self-serving affidavits executed by his
watchers and supporters. Aside from the fact that these
allegations were countered by opposing affidavits made by
the members of the Boards of Election Inspectors who are
presumed to have regularly performed their duties 16 and
who categorically denied the allegations, the election
returns were also observed to be genuine, clean, signed
and/or thumbmarked by the proper officials and
watchers.17

Well-entrenched is the rule that findings of fact by the

COMELEC, or any other administrative agency exercising
particular expertise in its field of endeavor, are binding on
this Court.18 In a pre-proclamation controversy, the board
of canvassers and the COMELEC are not required to look
beyond or behind the election returns which are on their
face regular and authentic. Where a party seeks to raise
issues the resolution of which would necessitate the
COMELEC to pierce the veil of election returns which
are prima facie regular, the proper remedy is a regular
election protest, not a pre-proclamation controversy.19

In the present case, petitioner barely alleged that the

preparation of said returns was attended by threats,
duress, intimidation or coercion without offering any proof,
other than the affidavits mentioned above, that these had
affected the regularity or genuineness of the contested
returns. Absent any evidence appearing on the face of the
returns that they are indeed spurious, manufactured or
tampered with, the election irregularities cited by petitioner
would require the reception of evidence aliunde which
cannot be done in a pre-proclamation controversy such as
the one initiated by petitioner. Returns can not be excluded
on mere allegation that the returns are manufactured or
fictitious when the returns, on their face, appear regular
and without any physical signs of tampering, alteration or
other similar vice. If there had been sham voting or
minimal voting which was made to appear as normal
through falsification of the election returns, such grounds
are properly cognizable in an election protest and not in a
pre-proclamation controversy.20

In sum, we hold that the COMELEC en banc did not

commit grave abuse of discretion in reversing the ruling of
its Second Division. The appeal brought by petitioner from
the order of inclusion issued by the MBC should have been
dismissed by that Division right away, since the grounds
for exclusion relied upon by petitioner are not proper in a
pre-proclamation case, which is summary in nature.

WHEREFORE, the instant petition is DISMISSED for lack

of merit, public respondent having committed no grave
abuse of discretion. Its challenged resolution dated August
24, 1999 is AFFIRMED. Costs against
petitioner.1âwphi1.nêt

SO ORDERED.