EN BANC
[G. R. No. 150111.
ABDULAKARIM D. UTTO, petitioner, vs. COMMISSION ON ELECTIONS, DATU ALMANSA B. ANGAS and THE NEW MUNICIPAL BOARD OF CANVASSERS OF SULTAN SA BARONGIS, respondents.
D E C I S I O N
PARDO, J.:
In this petition for certiorari and prohibition, petitioner seeks to annul the resolutions[1] of the Commission on Elections (Comelec) en banc, affirming in toto the resolution of the Comelec (First Division)[2] directing the inclusion of five (5) election returns excluded by the municipal board of canvassers during the canvass of votes for the May 14, 2001 election in the municipality of Sultan sa Barongis, Maguindanao and finding petitioner’s proclamation to be illegal and void ab initio.
Petitioner Abdulkarim D. Utto and respondent Datu Almansa B.
Angas were candidates for the position of the mayor of the
For the canvassing of votes of the May 14, 2001 election returns,
the original municipal board of canvassers was composed of Nena Alid as
chairman, and Maceda Lidasan Abo and Noron Gonina, as members. During the canvassing on
On
On
On
In the morning of
“With respect to 67A, the copy of the ER for local position is not original. At the instance of the interested parties, the same was excluded from the canvass.
“With respect to 15A, the ER is not the Board copy and the data on
the votes of the candidates are manifestly tampered by touch and go and not
initialed by the BEI. The votes in
“With respect to 25A and 26A, the ER is Ballot Box copy and from the testimony of the BEI, it could not be determined as to where are the Board copies. The Ballot Box copy is originally signed by the BEI and the watchers instead of reflected in carbon copy.
“With respect to 66A, the envelope has no outer seal. The Election Officer admitted that when the envelope was received by him, it was already opened. The ER contained in the envelope has no inner seal. The ER is two times exposed to substitution or switching.
“With respect to 68A and 69A, the outer seal appeared to be deliberately cut. The Election Officer confirmed that the outer seal was deliberately cut. There is no inner seal, exposing two times the ER.
“With respect to 126A and 127A, the Board copy is only for the
Party List, none for other returns. The
BEI could not determine where are the other copies.”[6]
At this point, respondent orally manifested his intention to
appeal the ruling,[7]
and simultaneously filed a verified notice of appeal, which Bai Haidy D.
Mamalinta (chairperson of the municipal board of canvassers) refused to accept.[8]
Meanwhile, despite respondent’s manifestation, the municipal
board of canvassers proceeded with the proclamation of the candidates for
municipal offices. The board proclaimed
petitioner as the duly elected mayor of the municipality.[9]
On June 1, 2001, Corazon Reniedo sent a letter to Atty. Wynne
Asdala, acting provincial election supervisor of Maguindanao irrevocably
resigning as member of the municipal board of canvassers of Sultan sa Barongis,
Maguindanao in connection with the canvass of the election returns because she
was being pressured to proclaim mayoralty candidate Abdulkarim Utto in gross
violation of Section 20, Republic Act No. 7166 and Section 38 (9), Comelec
Resolution No. 3848.[10]
Based on the canvass of 93 election returns, petitioner obtained a margin of
149 votes over respondent. The total
number of registered voters from the five excluded election returns is
944. Clearly, the results of the
municipal election would be adversely affected by the uncanvassed returns.[11]
On June 4, 2001, respondent filed a verified appeal[12]
with Comelec raising the issue of (1) whether the exclusion of four (4) returns
in Precinct Nos. 15A, 25A/26A, 66A and 68A/69A was justified or not; and (2)
whether the returns of Precinct No. 126A/127A would be included in the canvass
since there was a ruling directing its exclusion from the canvass.[13]
On
“Precinct No. No. of Voters
15A 142
25A/26A 233
66A 120
68A/69A 206
126A/127A 243
TOTAL 944”[16]
On
On
When the case was called for hearing on
On
“In view of the foregoing, the Commission First Division resolves as follows:
1. the rulings of the MBC directing the exclusion of the four (4) returns of Precinct Nos. 15A, 15A/26A, 66A, 68A/69A are hereby reversed and the same are hereby ordered included in the canvass. The proclamation of the respondent Abdulkarim D. Utto as alleged elected mayor of Sultan sa Barongis made on 31 May 2001 is hereby annulled and set aside;
2. the returns of Precinct No. 126A/127A is hereby included in the canvass. The Board of Canvassers shall use the copies of the Provincial Board of Canvassers, the COMELEC copy, or the ballot box copy whichever of the returns is available;
3. a new Municipal Board of Canvassers for Sultan sa Barongis is hereby created composed of lawyers from the main office in COMELEC, Manila and are hereby ordered to reconvene in the city of Manila to re-canvass the five (5) election returns ordered included in accordance with this decision and thereafter proclaim the winning candidate for Mayor; and
4. the new Municipal Board of Canvassers shall also re-canvass the results of the election for the position of Members of the Sangguniang Bayan in accordance with this decision.
SO ORDERED.”[25]
Meanwhile, petitioner took his oath at
On July 5, 2001, petitioner filed with Comelec, First Division, a
motion to reconsider the resolution of June 30, 2001, assailing it as contrary
to law and the evidence and issued without affording him notice and opportunity
to be heard as he was not impleaded as a party to the petition.[27]
In support thereof, petitioner cited Sandoval
v. Comelec,[28]
reiterating the ruling that Comelec shall comply with the twin requirement of
prior notice and hearing in the annulment of the proclamation. Petitioner prayed that the inclusion of the
uncanvassed return be set aside and the case remanded to the Comelec (First
Division) for the amendment of the petition to include all indispensable
parties.[29]
On
“IN VIEW OF ALL THE FOREGOING, the Motion for
Reconsideration is hereby DENIED for lack of merit and the Resolution of
SO ORDERED.”[30]
In its ruling, the COMELEC en banc adopted the findings of the First Division, thus:
“1. The election returns of Precinct No. 25A/26A was excluded simply because what was retrieved from the envelope containing the election returns and submitted to the MBC was the ballot box copy of the returns. The Board clearly erred. The ballot box copy is an authentic copy of the election returns and could be used as basis for the canvass. Likewise, it appears that no oral or written objection was presented for its exclusion. There being no objection, it should have been canvassed outright. The BEI Chairman appeared before the Board of Canvassers and explained why they signed anew the ballot box copy. The Chairman testified that the signatures of the BEI were not clearly visible and so the BEI members signed anew over and above their carbonized signatures.
“2. The election returns of Precinct No. 68A/69A and precinct No. 66A--- The returns of Precinct No. 68A/69A was excluded because the envelope containing the returns did not have a paper seal. That of Precinct No. 66A was rejected because the paper seal attached to the envelope containing the returns was broken. The grounds relied upon by the MBC are formal defects that do not affect the genuineness of the election returns. [Ocampo vs. Comelec, G. R. No. 136282 & 137470, February 15, 2000 citing Baterina vs. Comelec, 205 SCRA 1]
“3. The election returns of Precinct No. 15A-- This particular
election return was excluded by the Board on the ground that what was submitted
to the Board was not the copy of the MBC and that the data on the votes of the
candidates are manifestly tampered with touch and go and not initialed by the
BEI. The MBC also ruled that the votes
in
“4. The election returns of Precinct No. 126A/127A-- There is no ruling either by the original Board or the Board headed by Mamalinta directing the exclusion of the returns of Precinct No. 126A/127A. This returns had to be included in the canvass otherwise the canvass would be incomplete. When the envelope containing the returns was opened, only the returns for the party-list was found. The returns for the national, provincial, and local officials were not found inside the envelope. The situation is covered by the provision of Sec. 233 of the Omnibus Election Code. The Board was under obligation to summon the BEI and if the election returns have been lost or destroyed, the authority of the Commission must be obtained to use in the canvass the other authentic copies of the election returns. Here, the MBC ignored the provisions of Sec. 233 of the Omnibus Election Code providing that:
‘Sec 233. When election returns are delayed, lost or destroyed.-- In case its copy of the election returns is missing, the board of canvassers shall, by messenger or otherwise, obtain such missing election returns from the board of election inspectors concerned, or if said returns have been lost or destroyed, the board of canvassers, upon prior authority of the Commission, may use any of the authentic copies of said election returns or a certified copy of said election returns issued by the Commission, and forthwith direct its representative to investigate the case and immediately report the matter to the Commission.’ (Omnibus Election Code)
“The MBC is ordered to use the COMELEC copy, the PBC copy, or the
ballot box copy for the purpose of determining the results of Precinct No.
126A/127.”[31]
On
On
We deny the petition.
Petitioner claims that respondent by “skillful strategy” made it appear that he (petitioner) was a party in the appeal proceedings by filing a motion to annul proclamation in the same proceedings and naming him party respondent without obtaining prior leave of the Comelec.
Citing Velayo v. Comelec,[34] petitioner averred that his right to due process was violated due to his “non-inclusion as respondent and lack of notice of the proceedings in the Comelec which resulted in the cancellation of his proclamation”.[35] Without the required notice and hearing, petitioner contended that his proclamation cannot be annulled.
In reviewing administrative decisions, the Supreme Court
generally respected the findings of fact of administrative agencies as long as
they are supported by substantial evidence.[36]
Such findings of fact of administrative agencies, being considered experts in
their field are binding on the Supreme Court.[37]
There was substantial evidence that petitioner was duly notified of
the appeal and annulment proceedings. On
The factual circumstances in the instant petition are far different from that obtaining in Velayo.[43] Hence, the ruling enunciated therein is not applicable to petitioner’s situation.
In administrative proceedings, the essence of due process is
simply an opportunity to be heard, or an opportunity to explain one’s side or
opportunity to seek a reconsideration of the action or ruling complained of.[44]
At the hearing before the Comelec en banc of petitioner’s motion for
reconsideration, petitioner was given full opportunity to present his case. He
did not present controverting evidence
to justify the exclusion of the five (5) election returns.
Considering that at the time respondent filed the motion to annul proclamation no responsive pleading had been served, amendment of the appeal was still a matter of right. Rule 9, Section 1, 1993 Comelec Rules of Procedure explicitly provides:
“Section 1. When Amendments Allowed as a Matter of Right.- A party may amend his pleading once as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within five days after it is served.”
Hence, petitioner’s contention that the amendment was illegal in the absence of prior leave of court is erroneous.
Assuming arguendo that petitioner was not given notice or an opportunity to be heard, the petition would still be denied. The twin-requirement of notice and hearing in annulment of proclamation is not applicable because of the illegality of petitioner’s proclamation.
Section 38 (9), Comelec Resolution No. 3848[45]
provided the procedure in the disposition of contested election returns and
certificate of canvass. The Comelec precludes the board of canvassers from proclaiming any candidate as
winner, except upon its authorization
after it has ruled on the appeal of the losing
party. Any proclamation made in
violation thereof shall be void ab initio, unless the contested returns
will not adversely affect the results of the election. This provision is mandatory and requires
strict observance.
Section 20 (i), Republic Act No. 7166 where Comelec Resolution No.3848 finds basis further states:
“SEC. 20. Procedure in Disposition of Contested Election Returns.--(a) x x x
(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.”
Consequently, petitioner’s proclamation was null and void. It was made on
It is now settled that an incomplete canvass of votes is illegal
and cannot be the basis of a proclamation.[47]
A canvass cannot be reflective of the true vote of the electorate unless all
returns are considered and none is omitted.[48]
When the municipal board of canvassers disregarded the five (5) election
returns, it in effect disenfranchised
the voters of the excluded precincts.[49]
Thus, the Comelec did not abuse its discretion for convening a new board of canvassers and directing the inclusion of the uncanvassed election returns and, thereafter proclaiming the winning candidate for mayor and other municipal officials.
Time and again, the Court has given its imprimatur on the
principle that Comelec is with authority to annul any canvass and proclamation
illegally made.[50]
The fact that a candidate illegally proclaimed has assumed office is not a bar to
the exercise of such power. It is also
true that after proclamation, the remedy of a party aggrieved in an election is
an election protest.[51]
This is on the assumption, however, that there has been a valid
proclamation. Where a proclamation is
null and void, the proclaimed candidate’s assumption of office cannot deprive
Comelec of the power to declare such proclamation a nullity.[52]
The reason behind the view herein expressed is as aptly elucidated in Aguam, to wit:
“We draw from past experience.
A pattern of conduct observed in past elections has been the ‘pernicious
grab-the-proclamation-prolong-the-protest-slogan’ of some candidates or
parties.’ Really, were a victim of a proclamation to be precluded from
challenging the validity thereof after that proclamation and the assumption of
office thereunder, baneful effects may easily supervene. It may not be out of place to state that in
the long history of election contests in this country, as observed in Lagumbay
vs. Climaco,[53] a
successful contestant in an election protest often wins but ‘a mere pyrrhic
victory, i. e., a vindication when the term of office is about to expire or has
expired.’ Protests, counter-protests, revisions of ballots, appeals, dilatory
tactics, may well frustrate the will of the electorate. And what if the protestant may not have the
resources and an unwavering determination with which to sustain a long
drawn-out election contest? In this
context therefore all efforts should be strained—as far as is humanly possible—
to take election returns out of the reach of the unscrupulous; and to prevent
illegal or fraudulent proclamation from ripening into illegal assumption of
office.”[54]
WHEREFORE, the Court hereby DENIES the petition for certiorari and AFFIRMS in toto
the October 5, 2001 Comelec en banc resolution in SPC No. 01-253. The temporary restraining order issued on
This decision is immediately executory.
No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.
[1] In SPC. No. 01-253,
dated
[2] Promulgated on
[3] Annex “F”, Comelec
Records, pp. 27-28.
[4] Comelec (First
Division) Resolution, Rollo, pp. 22-27, at p. 23.
[5] But Mowakiram
Samuang’s signature appeared on the
certificate of canvass of votes and proclamation of the winning candidates for
municipal officers., Annex “C”, Rollo, p. 35.
[6] Annex “G”, Comelec
Records, pp. 29-34, at pp. 32-33.
[7] Annex “A”, Comelec Records, p. 19.
[8] Comelec Records, p.
53.
[9] Annex “C”, Rollo,
p. 35.
[10] Sec. 38. Procedure in the disposition of contested Election Returns and Certificate of Canvass- The following procedure is mandatory and shall be strictly observed by the Boards:
x x x
9. The Board shall not proclaim any candidate as winner unless authorized by the Comelec after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns/certificate will not adversely affect the results of the election.
x x x.
[11] Annex “B”, Comelec
Records, p. 94.
[12] Docketed as SPC. No.
01-253, and raffled off to the First Division of the COMELEC.
[13] Annex “A”, Rollo,
pp. 22-27, at p. 23.
[14] Annex “F”, Rollo,
pp. 55-60.
[15] Section 20. Procedure in disposition of Contested Election Returns.-
x x x
(i) The board of canvassers shall not proclaim any candidate
as winner unless authorized by the commission after the latter has ruled on the
objections brought to it on appeal by the losing party. Any proclamation made in violation hereof
shall be void ab initio, unless the contested returns will not adversely
affect the results of the election.
[16] Comelec Records, pp.
110-112.
[17] Comelec Records, pp.
103-109.
[18] Comelec Resolution
promulgated on
[19] Comelec Records, p.
148.
[20] Minutes of the
Session of
[21] Issued in behalf of
the Division by Presiding Commissioner Resurreccion Z. Borra.
[22] Order, Comelec
Records, pp. 174-175.
[23] Telegram Transmission,
Comelec Records, p. 169.
[24] Promulgated on
[25] Comelec (First
Division) Resolution, Rollo, pp. 22-26, at p. 26.
[26] Annex “C”, Petition,
Rollo, pp. 35.
[27] Motion for
Reconsideration, Records, pp. 184-189, at p. 184.
[28] 323 SCRA 403 [2000].
[29] Motion for
Reconsideration, Records, at p. 188.
[30] Rollo, p. 32.
[31] Rollo, pp.
361-363.
[32] Under Rule 64, in
relation to Rule 65, Revised Rules of Court, Petition, Rollo, pp. 3-21.
[33] Rollo, p. 73.
[34] 327 SCRA 713 [2000].
[35] Petition, Rollo,
p. 16.
[36] Lo v. Court of Appeals, 321 SCRA
190 [1999].
[37] Golden Thread
Knitting Industries, Inc. v. National Labor Relations Commission, 364
Phil. 215, 222 [1999].
[38] Comelec Records, p.
148.
[39] Registry Return Card
No. 78117.
[40] Registry Receipt No.
1203
[41] Comelec Records, p.
216.
[42] Registry Receipt No.
1201
[43] Supra, Note
34.
[44] Audion Electric Co., Inc. v. National
Labor Relations Commission, 308 SCRA 340 [1999].
[45] Which took effect on
[46] Duremdes v.
Comelec, 178 SCRA 746, 758 [1989].
[47] Mutuc v.
Comelec, 130 Phil. 663, 669 [1968].
[48] Duremdes v.
Comelec, supra, Note 46, citing Sinsuat v. Pendatun, 144 Phil.
729 [1970].
[49] Mutuc v.
Comelec, supra, Note 47, at p. 670.
[50] Aguam v.
Comelec, 132 Phil. 353, 357 [1968].
[51] Torres v. Comelec,
337 Phil. 270, 275 [1997].
[52] Duremdes v.
Comelec, supra, Note 46, at p. 757.
[53] 122 Phil. 1274
[1966].
[54] Supra, Note
50, at pp. 357-358.