EN BANC
|
ANWAR “ANO”
S. MARABUR, Petitioner, |
G.R.
No. 169513 |
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Present: |
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
- versus - CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR., and
NACHURA, JJ.
COMMISSION ON ELECTIONS and
Promulgated:
OMAR “BORNOK” MAHAMAD, JR.,
Respondents.
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D E C I S I O N
CARPIO,
J.:
The Case
This
petition for certiorari[1]
assails the Resolution dated
The Facts
Petitioner
and Omar “Bornok” Mahamad,[6]
Jr. (respondent) were among the candidates for councilors of
On
On
On
On
On
3.
That after the counting of votes which was held
at People’s Park,
4. That to the best of our own personal knowledge, candidates for Councilors Omar “Bornok” Mohamad, Jr. and Anwar “Ano” S. Marabur obtained the following votes corresponding to their names as follows:
Omar “Bornok” Mohamad, Jr. – Forty-Eight votes (48 votes)
Anwar “Ano”
5.
That it is not true that Anwar
“Ano”
6.
That we executed this Affidavit to attest to the
veracity of the foregoing statements and to inform the Honorable Members of the
City Board of Canvassers of Marawi City that
Candidate for Councilor Anwar “Ano”
S. Marabur did not received [sic] or obtained [sic]
One Hundred Fifty votes (150 votes).[7]
Respondent
also submitted an affidavit of one of his watchers claiming that respondent
obtained 48 votes[8]
while petitioner received 50 votes.
The Certificate of Votes of Candidates,[9] which was signed and thumb marked by the
Board of Election Inspectors, likewise showed that petitioner obtained only 50
votes in Precinct No. 108-A.
Respondent
also argued that it was impossible for petitioner to obtain 150 votes from
Precinct No. 108-A because based on the contested election return only 132
voters actually voted in Precinct No. 108-A.
With
the respondent’s objections and offer of evidence, the CBC initially deferred
its canvass with the announcement that it could only proclaim the nine
candidates for councilor who obtained the highest votes.
However,
on
On
Meanwhile,
petitioner took his Oath of Office as councilor of
The Ruling of the COMELEC
In
its Resolution of 21 February 2005, the COMELEC Second Division found that the
CBC violated the prohibition in Section 20 of Republic Act No. 7166 (RA 7166)[14]
on proclaiming any candidate as winner without authorization from the COMELEC
after the COMELEC has ruled on the objections of the losing party. This
prohibition is also found in the COMELEC rules. Since there was no such prior authorization
from the COMELEC, the proclamation of petitioner as the 10th ranking
councilor of
The
COMELEC also found that the contested election return, “by sheer visual
inspection,” was clearly tampered. The
150 votes for petitioner were superimposed over the actual votes that he
obtained – which were 50 votes.
Excluding the contested election return, the total number of votes from
all the precincts in Marawi City including the true
votes in Precinct No. 108-A, would be:
Respondent – 10,
118 votes
Petitioner – 10,
070 votes
Therefore, the winning candidate as
the 10th councilor of
The dispositive
portion of the resolution reads:
WHEREFORE, under the foregoing premises, the instant Petition is hereby GRANTED. Consequently, the proclamation of private respondent Anwar “Ano” S. Marabur as the tenth (10th) ranking and winning candidate for city councilor of Marawi City, Lanao del Sur is hereby ANNUL[L]ED.
Upon finality of this Resolution,
the City Board of Canvassers of Marawi City is hereby
directed to re-convene and re-canvass the election return from Precinct No.
108-A of Barangay Lomidong,
Marawi City and consistent with Our pronouncement
herein. Thereafter, the said City Board
of Canvassers is hereby directed to proclaim the tenth ranking and lawfully
elected councilor for
SO ORDERED.[15] (Emphasis in the original)
On
On
WHEREFORE, premises considered, the
MOTION FOR RECONSIDERATION as well as the VERY URGENT MOTION TO DISMISS (WITH
LEAVE) AND/OR EXPUNGE FROM THE RECORDS THE ABOVE-ENTITLED PETITION” filed by
private respondent ANSWAR [sic] “ANO” S. MARABUR are hereby DENIED. The Resolution of this Commission (Second
Division) promulgated last
SO ORDERED.[16]
(Emphasis in the original)
Hence, this petition.
The Issue
The
lone issue for resolution is whether the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in annulling the
proclamation of petitioner as the 10th ranking and winning candidate
for councilor of
The Ruling of the Court
The petition lacks merit.
In
resolving the issue, we shall examine whether the procedure outlined in Section
20 of RA 7166[17]
governing the disposition of contested election returns was observed in this
case.
Section
20 of RA 7166 reads as follows:
Section 20. Procedure in Disposition of Contested Election Returns. –
(a) Any candidate, political party or coalition of political parties contesting the inclusion or exclusion in the canvass of any election returns on any of the grounds authorized under Article XX or Sections 234, 235 and 236 of Article XIX of the Omnibus Election Code shall submit their oral objection to the chairman of the board of canvassers at the time the questioned return is presented for inclusion in the canvass. Such objection shall be recorded in the minutes of the canvass.
(b) Upon receipt of any such objection, the board of canvassers shall automatically defer the canvass of the contested returns and shall proceed to canvass the returns which are not contested by any party.
(c) Simultaneous with the oral objection, the objecting party shall also enter his objection in the form for written objections to be prescribed by the Commission. Within twenty-four (24) hours from and after the presentation of such an objection, the objecting party shall submit the evidence in support of the objection, which shall be attached to the form for written objections. Within the same period of twenty-four (24) hours after presentation of the objection, any party may file a written and verified opposition to the objection in the form also to be prescribed by the Commission, attaching thereto supporting evidence, if any. The board shall not entertain any objection or opposition unless reduced to writing in the prescribed forms.
The evidence attached to the objection or opposition, submitted by the parties, shall be immediately and formally admitted into the records of the board by the chairman affixing his signature at the back of each every page thereof.
(d) Upon receipt of the evidence, the board shall take up the contested returns, consider the written objections thereto and opposition, if any, and summarily and immediately rule thereon. The board shall enter its ruling on the prescribed form and authenticate the same by the signatures of its members.
(e) Any party adversely affected by the ruling of the board shall immediately inform the board if he intends to appeal said ruling. The board shall enter said information in the minutes of the canvass, set aside the returns and proceed to consider the other returns.
(f) After all the uncontested returns have been canvassed and the contested return ruled upon by it, the board shall suspend the canvass. Within forty-eight (48) hours, therefrom, any party adversely affected by the ruling may file with the board a written and verified notice of appeal; and within an unextendible period of five (5) days thereafter an appeal may be taken to the Commission.
(g) Immediately upon receipt of the notice of appeal, the board shall make an appropriate report to the Commission, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report.
(h) On the basis of the records and evidence elevated to it by the board, the Commission shall decide summarily the appeal within seven (7) days from receipt of said records and evidence. Any appeal brought before the Commission on the ruling of the board, without the accomplished forms and the evidence appended thereto, shall be summarily dismissed.
The decision of the Commission shall be executory after the lapse of seven (7) days from receipt thereof by the losing party.
(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objection brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election. (Emphasis supplied)
Respondent presented his oral
objections in accordance with paragraph (a). Petitioner’s own admission that respondent’s
counsel, Atty. Federico Miranda, verbally objected to the tabulation when the
CBC was about to tally and tabulate the election return from Precinct No. 108-A[18]
negates petitioner’s claim that respondent belatedly aired his objections. Respondent presented his objections within
the time allowed by law, which is when the election return is still being
examined by the CBC.[19]
Therefore, respondent did not violate the rule that protestants
should present objections to the inclusion or exclusion of election returns at
the time the questioned returns are presented for inclusion in the canvass.[20]
Pursuant
to paragraph (b), the CBC deferred the canvass of the election returns with the announcement
that it could only proclaim the nine candidates for councilor with the highest
number of votes.
However,
respondent failed to comply with the requirement in paragraph (c),
pertaining to the submission of his written objections in the form prescribed
by the COMELEC. Respondent explains that
it was “due to the fact that [he] was completely deprived of the opportunity to
file a simultaneous written objection because of the commotion that ensued
immediately after [he]
has entered his oral objection.”[21] Significantly, petitioner acknowledged that a
commotion occurred after respondent’s counsel objected to the inclusion of the
contested election return.[22]
While
respondent failed to submit his written objections, the Court finds that
respondent’s submission of his offer of evidence, including the evidence,
within the prescribed period[23]
constituted substantial compliance with the requirement that objections be
reduced into writing.
Indeed,
reducing the objections into writing and submitting them
with the supporting evidence are crucial to the delivery of speedy and
equitable relief in pre-proclamation controversies.[24] Unless this requirement is strictly observed,
the COMELEC can not determine the prima facie merit of the appeal, and
the controversy will be unduly prolonged.[25] After reviewing respondent’s evidence, we
find that even without respondent’s written objections, the CBC and the COMELEC
could rule, as they did, on respondent’s objections. Thus, the purpose for requiring the written
objections, which is to expedite the resolution of pre-proclamation
controversies, was achieved. There was
no showing that the absence of the written objections unduly delayed the
resolution of respondent’s protest.
Likewise, there was no indication that the COMELEC was unable to decide
respondent’s appeal for lack of his written objections.
To
rule that the absence of respondent’s written objections, despite the glaring
irregularity of the election return from Precinct No. 108-A, is a ground to
uphold petitioner’s proclamation amounts to an absolute frustration of the
electorate’s will. Technicalities and procedural barriers should not be allowed
to stand if they constitute an obstacle to the determination of the
electorate’s true will in the choice of their elective officials.[26]
Petitioner himself understands the purpose of the rules on canvassing. The “rules relative to canvassing have for
their object the determination of the true results of the elections based on
the official election returns. In order
that the result of the canvass would reflect the true expression of the
people’s will in the choice of their elective officials, the canvass must be
based on true, genuine, and authentic election returns.”[27]
At
any rate, pursuant to paragraph (d), the CBC entertained and ruled on
respondent’s objections despite his failure to reduce such objections into
writing. The CBC, in its Ruling of
However,
the CBC contravened paragraphs (e), (f), (g), and (i). First, the CBC ignored respondent’s
manifestation to appeal. Under paragraph (e), the CBC should have entered
respondent’s intent to appeal in the minutes of the canvass, set aside the
contested election return, and proceeded to consider the other returns. There is no showing that the CBC observed
this procedure. Second, the CBC did not
suspend the canvass, and instead proclaimed petitioner as one of the winning
candidates for councilor. The CBC, in
violation of paragraph (f), did not give respondent 48 hours to file his notice
of appeal forcing respondent to appeal directly to the COMELEC. Consequently, the CBC did not elevate any
record or evidence
to the COMELEC as required in paragraph (g).
Finally, disregarding paragraph (i), the CBC
proclaimed petitioner without any COMELEC authorization after the COMELEC has
ruled on respondent’s objections.
Paragraph
(i) of Section 20, RA 7166 provides that any
proclamation made in violation of the prohibition against proclamation without
the COMELEC authorization shall be void ab initio. Accordingly, petitioner’s proclamation as the
10th ranking and winning candidate for councilor is void.[29] Where a proclamation is void, the
proclamation is no proclamation at all and the assumption of office of the
proclaimed candidate cannot deprive the COMELEC of the power to declare such
nullity and to annul the proclamation.[30] The nullity of the proclamation is one of the
exceptions[31]
to the rule that after a
proclamation has been made, a pre-proclamation case before the
COMELEC is no longer viable.[32] This resolves petitioner’s argument that
respondent’s cause of action is proper in an election contest, and not in a
pre-proclamation controversy.
In
view of the CBC’s violation of paragraph (i), among others, we find that the COMELEC properly annulled
petitioner’s proclamation and committed no grave abuse of discretion amounting
to lack or excess of jurisdiction. For
this Court to issue the extraordinary writ of certiorari, the tribunal or
administrative body, in this case the COMELEC, must have
issued the assailed decision, order, or resolution in a capricious and despotic
manner.[33]
Clearly, such is not the situation in the instant case.
Petitioner’s
contention that the contested election return contained no sign of any
tampering or alteration, and thus, prima facie regular on its face, is
untenable. The finding of the COMELEC that by simple inspection the contested election return is
clearly tampered binds this Court,[34]
absent any showing that this particular finding is unsubstantiated. As attested
to by the members of the Board of Election Inspectors in Precinct No. 108-A,
petitioner did not receive 150 votes.
Since the election return does not, on its face, appear regular, the
rule that the CBC and the COMELEC are not to look beyond or behind the election
return is not applicable to this case.[35]
In
addition, the suspicious disappearance
and sudden reappearance of the contested election return should have put the
CBC on guard of possible tampering or alteration of the election return from
Precinct No. 108-A. Yet, the CBC included in its canvass the election return
and continued to proclaim petitioner in defiance of the express prohibition
under paragraph (i) of Section 20 of RA 7166.
On
petitioner’s claim that respondent is not a registered voter of Barangay Marinaut East, we agree
with the COMELEC’s ruling that “issues relating to
the qualifications of candidates are not proper in pre-proclamation
controversies such as the instant case.”
As defined by the Omnibus Election Code,[36]
a pre-proclamation controversy refers to any question affecting the proceedings
of the board of canvassers, or any matter raised under Sections 233, 234, 235,
and 236 in relation to the preparation, transmission, receipt, custody, and
appreciation of the election returns.
WHEREFORE,
we DISMISS the petition and AFFIRM the Resolution dated
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
Chief Justice
|
LEONARDO A. QUISUMBING Associate Justice |
CONSUELO YNARES-SANTIAGO Associate Justice |
|
ANGELINA SANDOVAL-GUTIERREZ Associate Justice
|
MA. ALICIA AUSTRIA-MARTINEZ Associate
Justice |
|
RENATO C. CORONA Associate Justice |
CONCHITA CARPIO MORALES Associate Justice |
|
ROMEO J. CALLEJO, SR. Associate
Justice |
ADOLFO S. AZCUNA Associate Justice |
|
DANTE O.
TINGA Associate Justice |
MINITA V.
CHICO-NAZARIO Associate Justice |
|
CANCIO C. GARCIA Associate Justice |
PRESBITERO J. VELASCO, JR. Associate Justice |
ANTONIO
EDUARDO B. NACHURA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I
certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court.
Chief Justice
[1] Under Rule 64 in relation to Rule 65 of the Rules of Court.
[2] Rollo, pp. 46-59.
[3] Composed of Presiding Commissioner Mehol K. Sadain, Commissioners Florentino A. Tuason, Jr., and Manuel A. Barcelona, Jr.
[4] Rollo, pp. 62-65.
[5] Composed of Chairman Benjamin S. Abalos, Sr., Commissioners Rufino S.B. Javier, Resurreccion Z. Borra, Mehol K. Sadain, and Florentino A. Tuason, Jr.
[6] Sometimes spelled in the records as “Mohamad” and “Mohammad.”
[7] Rollo,
p. 82. The affiants, namely, Dimangadap Cacasi, Jubaira Macapodi, and Johary Diacatra are public school teachers who served as
Chairman and Members, respectively, of the Board of Election Inspectors assigned to Precinct No. 108-A, Barangay Lomidong,
[8]
[9]
[10]
[11]
[12]
[13]
[14] An Act Providing for Synchronized
National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor,
and for Other Purposes. Approved on
[15] Rollo, pp. 58-59.
[16]
[17] This provision is substantially reiterated in Section 9, Rule 27 of the COMELEC Rules of Procedure and in Section 36 of COMELEC Resolution No. 6669 or the General Instructions for Municipal/City/Provincial and District Boards of Canvassers in Connection with the May 10, 2004 Elections.
[18] Rollo, p. 23.
[19] Guiao v. Commission on Elections, No. L-68056,
[20] See Danilo “Dan” Fernandez v. Commission on Elections and Teresita Lazaro, G.R. No. 171821, 9 October 2006, citing Siquian, Jr. v. COMELEC, 378 Phil. 182 (1999).
[21] Rollo, p. 118.
[22]
[23] Within 24 hours from and after the
presentation of respondent’s oral objections on
[24] Cordero v. Comelec, 369 Phil. 368 (1999).
[25]
[26] Duremdes
v. Commission on Elections, G.R. Nos. 86362-63,
[27] Rollo, p. 26.
[28]
[29] Duremdes v. Commission on Elections, supra note 26.
[30]
[31] These are 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 filing 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 (Laodenio
v. COMELEC, 342 Phil. 676 [1997]).
[32] See
Gallardo v. Rimando, G.R. No. 91798, 13 July 1990, 187 SCRA 463; Casimiro
v. Commission
on Elections, G.R. Nos. 84462-63,
[33] Malinias v. COMELEC, 439 Phil. 319 (2002).
[34] See Padilla v. Commission on
Elections, Nos. 68351-52,
[35] See
[36] Batas Pambansa Blg. 881.