EN BANC
|
ADELINA TAMAYO-REYES, M.D., Petitioner, - versus - COMMISSION ON ELECTIONS and FERNANDO
R. CABITAC, Respondents. |
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G.R. No. 175121 Present: PUNO, C.J.,* QUISUMBING,** YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES,*** AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, VELASCO, JR., and NACHURA, JJ. Promulgated: June 8, 2007 |
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NACHURA, J.:
Before this Court is a Petition for
Certiorari and Prohibition with prayer for the Issuance of a Writ of
Preliminary Injunction and/or Temporary Restraining Order. The petition seeks to annul the Resolution of
the Commission on Elections (COMELEC) En
Banc dated
Petitioner and private respondent
Fernando Cabitac were candidates for Vice-Mayor of Taytay, Rizal during the
Dissatisfied, petitioner caused the
compilation of all copies of the election returns and the statement of votes by
precinct and discovered discrepancies thereon.
Then, almost four (4) months after the proclamation of private respondent,
or on
CABITAC
|
REYES
|
|
|
Double Entry |
1057 |
751 |
|
Fabricated SOV |
1495 |
1263 |
|
Non-Existing/Non-Registered Precincts |
164 |
76 |
|
Single Precinct No. Clustered with Other Precinct No. |
269 |
221 |
|
Clustered Precincts Split into 2 |
221 |
159 |
|
Questionable Envelope No. and Seal No. |
126 |
78 |
|
Precincts Missing in Minutes Tabulated in SOV |
587 |
434 |
|
Regular Precinct in POP Listed with Different M/C Precinct |
996 |
555 |
TOTAL
|
4915 |
3537 |
Total Votes
to be Excluded 34715 33147
- 4915
3537
---------------------------------------------------
TOTAL 29800 29610
Add:
Missing Precincts in +
570 917
SOV w/ ER
and COV to be
----------------------------------------------------
Included
TOTAL 30370 30527
Add:
Appreciated in Minutes/ + 91 106
Missing in
SOV
----------------------------------------------------
TOTAL 30,461 30,633
Public respondent below, the MBOC of
Taytay, Rizal, in its Answer, invoked the legal presumption that official duty
has been performed since no objection was ever made during the canvassing on
the alleged errors in computation.
Private respondent filed before the
COMELEC First Division a Motion to Dismiss on the ground of lack of cause of
action and for want of jurisdiction since the provisions of Section 35 of
COMELEC Resolution 6669[5]
were not observed.
The COMELEC First Division, in its
Resolution dated
1. Double entry precincts in SOV that were tabulated twice (election returns were tabulated twice);
2. Non-existing/Non-registered precincts in Project of Precincts indicated in SOV and were tabulated. (Tabulation of results from non-existent precincts);
3. Clustered precincts split into two and tabulated separately in the SOV;
4. Missing precincts in SOV and Minutes registered in Project of Precincts and with Election Returns and Certificate of Votes (Results from existing precincts were not tabulated); and
5. Precincts appreciated in Minutes and registered in Project of Precincts with election return missing and not tabulated in SOV (Results from existing precincts were not tabulated).[8]
It said,
even if correction was made on these matters and using the data proffered by
petitioner, private respondent would, at the very least, still enjoy a majority
of 750 votes over petitioner as can be shown below:
|
TOTAL NUMBER OF VOTES PER |
CABITAC |
REYES |
|
|
PROCLAMATION |
34,715 |
33,147 |
|
|
LESS: |
|||
|
INVALID |
DOUBLE ENTRY/TABULATED TWICE IN SOV |
1,057 |
751 |
|
RESULTS PER DATA |
NON-EXISTING PRECINCTS TABULATED IN SOV |
164 |
76 |
|
OF PETITIONER |
CLUSTERED PRECINCTS SPLIT INTO TWO AND TABULATED IN SOV |
221 |
159 |
|
SUB-TOTAL |
33,273 |
32,161 |
|
|
ADD: |
|||
|
VALID RESULTS |
MISSING PRECINCTS IN SOV WITH ER & COV |
570 |
917 |
|
PER DATA OF PETITIONER |
PRECINCTS REGISTERED IN POP WITH MISSING ER AND NOT
TABULATED IN SOV |
91 |
106 |
|
GRAND TOTAL: |
33,934 |
33,184 |
|
Petitioner filed a Motion for
Reconsideration on
The COMELEC En Banc, in its Resolution dated October 16, 2006,[10]
affirmed the ruling of the COMELEC First Division and denied the motion for
want of merit; hence, this petition raising essentially the same issues as in
the motion for reconsideration.
In the Resolution dated
In a Manifestation and Motion dated
December 19, 2006,[12]
the Office of the Solicitor General prayed that it be excused from filing a
comment in view of Section 5, Rule 65 of the 1997 Rules on Civil Procedure that
it shall be the duty of the private respondent to appear and defend, both on
his behalf and on behalf of the public respondent affected by the
proceedings. The Court granted the
motion in its Resolution dated
On the other hand, private respondent
failed to file his comment. Thus, this
Court, in its Resolution[14]
dated
On April 20, 2007, Atty. Masilang
filed his Compliance (Apologia and Explanation)[15]
dated April 11, 2007 apologizing profusely for his failure to file the comment
for private respondent allegedly on account of illness, political harassment,
and failure of his staff to file said comment.
Except for the affidavit of the person taking on the blame for the
non-filing of the comment, there was no other evidence submitted by Atty.
Masilang to support his explanation.
Moreover, the required comment was still not filed. Finding the explanation unsatisfactory, this
Court ruled that the filing of the comment for private respondent be dispensed
with and the case deemed submitted for decision.
The petition should be dismissed.
It should be noted that what
petitioner filed was a petition for correction of manifest errors and
nullification of proclamation, which is a pre-proclamation controversy. A pre-proclamation controversy refers to any
question pertaining to or affecting the proceedings of the board of canvassers
which may be raised by any candidate or by any registered political party or
coalition or political parties before the board or directly with the COMELEC,
or any matter 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.[16] It is limited to an examination of the
election returns on their face and the COMELEC, as a general rule, need not go
beyond the face of the returns and is without jurisdiction to go beyond or
behind them and investigate the alleged election irregularities.[17]
Albeit it is regrettable that the
COMELEC First Division took 21 months from the filing of the petition to
resolve the case, it nonetheless acted correctly when it ordered the dismissal
of the petition. Indeed, it did not
gravely abuse its discretion when it considered only five out of the ten
irregularities pointed out by petitioner as matters proper for correction of
manifest errors. Applying the data
proffered by petitioner herself, it turned out that private respondent would
still emerge as the duly elected Vice- Mayor of Taytay, Rizal.
The correction of manifest errors has
reference to errors in the election returns, in the entries in the Statement of
Votes (SOV) by precinct per municipality or in the certificate of canvass.[18] For errors to be manifest, they must appear
on the face of the certificates of canvass or election returns sought to be
corrected, and objections thereto must have been made before the Board of
Canvassers and specifically noted in the minutes of their respective
proceedings.[19] This Court defined "manifest" as
evident to the eye and understanding; visible to the eye; that which is open,
palpable, and incontrovertible; needing no evidence to make it more clear; not
obscure or hidden.[20]
In light of the above pronouncements,
the following circumstances pointed out by petitioner could not be said to be
clerical errors evident on the face of the election returns, viz:
1. Manufactured/Fabricated SOVs were included in the tabulation;
2. Single precinct recorded in the Project of Precincts clustered with other precincts in the Minutes;
3. Questionable envelope number and seal number found in the Minutes;
4. Registered precincts in the Project of Precincts are missing in the Minutes although tabulated in the SOV; [and]
5. Precincts registered in the Project of Precincts but listed with different merged and clustered precincts in the Minutes.[21]
As aptly
said by the COMELEC First Division,
Indeed, these are not clerical or mathematical errors, which are evident on the face of the said documents. The question of whether a tabulated SOV is manufactured or not could not be resolved by merely looking at the said document but by examining other documents or evidence aliunde. The fact that the envelopes containing the election returns have questionable envelope and seal numbers as seen in the minutes does not make the tabulation erroneous.
With respect to the precincts included in the tabulation, it is the statement of votes per precinct, and not the minutes of the proceedings of the board of canvassers, which is controlling. Consequently, if there are discrepancies between the number of precincts found in the statement of votes by precinct and in the minutes of the proceedings of the board, the data in the former shall prevail. Moreover, errors in the entry of precinct number in the minutes could not be considered as manifest clerical mistakes correctible through the instant action.[22]
Petitioner urges this Court to direct
the COMELEC to undertake the correction of the ostensibly manifest errors in
accordance with Section 4, Rule 27 of the 1993 COMELEC Rules of Procedure[23]
in relation to Section 243 of the Omnibus Election Code.[24] However, both cited provisions refer to the
issues that may be raised in pre-proclamation controversies. Moreover, in citing these provisions,
petitioner was unmindful of the other provisions of the same Rules of Procedure.
It should be remembered that
petitioner filed her petition for correction of manifest errors and
nullification of proclamation directly with the COMELEC. According to Section 5, Rule 27 of the 1993
COMELEC Rules of Procedure, there are only two (2) instances where a
pre-proclamation controversy may be filed directly with the COMELEC, namely,
(1) illegal composition or proceedings of the board of canvassers; and (2)
correction of manifest errors. Thus, it
was proper for the COMELEC to take cognizance of the petition, and in their
respective resolutions, both the COMELEC First Division and En Banc were correct in not considering
the five alleged irregularities since they were beyond the ambit of
"manifest errors."
Accordingly, the COMELEC did not commit grave abuse of discretion.
Also noteworthy is that relative to the
five other irregularities raised in her petition before the COMELEC which were
deemed improper for correction of manifest errors, petitioner claimed that the
election returns and the statements of votes had been tampered with and
falsified. This claim would be
appropriate in a pre-proclamation contest proper, not in a petition for mere correction
of manifest errors. And as previously
mentioned, petitioner failed to record her objection to these alleged irregularities
in the minutes of the MBOC. Section 2,
Rule 27 of the 1993 COMELEC Rules of Procedure provides that matters raised
under Sections 233 (when the election returns are delayed, lost, or destroyed),
234 (when there are omissions on the election returns), 235 (when the election returns appear to be tampered with or falsified),
and 236 (when there are discrepancies in the election returns) of the Omnibus
Election Code shall be brought in the
first instance before the Board of Canvassers only. This provision is mandatory. Thus, petitioner’s failure to raise these
matters before the MBOC of Taytay, Rizal barred her from questioning the same
before the COMELEC.
While this Court does not contest the
rulings cited by petitioner in Tatlonghari v. COMELEC,[25]
Bince, Jr. v. COMELEC,[26]
and Ramirez v. COMELEC[27]
that a petition for correction of manifest errors may be filed even beyond the
reglementary period of five (5) days following the date of proclamation
pursuant to Section 5(b), Rule 27 of the 1993 COMELEC Rules of Procedure, and
that the COMELEC has the power to annul the proclamation made on the basis of
an erroneous tabulation of votes in the election returns or in the statement of
votes, we agree with the COMELEC First Division and En Banc that the case of petitioner does not fall within the scope
of the above-mentioned rulings. Indeed,
even if the truly manifest errors were corrected using the data presented by
petitioner herself, the proclamation of private respondent as the winning Vice-Mayoral
candidate of Taytay, Rizal will still stand.
WHEREFORE, the instant petition for certiorari and prohibition is DISMISSED for lack of merit, and the
Resolutions dated
SO ORDERED.
ANTONIO
EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
(On Official Leave)
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Acting Chief Justice
|
CONSUELO
YNARES-SANTIAGO Associate Justice |
|
ANGELINA
SANDOVAL-GUTIERREZ Associate Justice
|
ANTONIO T. CARPIO Associate Justice
|
|
MA. ALICIA
AUSTRIA-MARTINEZ Associate Justice
|
RENATO
C. CORONA
Associate Justice
|
(On Leave)
CONCHITA
CARPIO MORALES 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 |
C E R T I F I C A T I O N
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.
LEONARDO
A. QUISUMBING
Acting Chief Justice
* On official leave.
** Acting Chief Justice.
*** On leave.
[1] Rollo, pp. 47-51.
[2]
[3] Reproduced in this petition; id.
at 6-15.
[4] Adapted from the presentation of
petitioner; id. at 11.
[5] Sec. 35. 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 Sec. 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.
[6] Supra.
[7] There is manifest error when: (1)
a copy of the election returns or certificate of canvass was tabulated more
than once; (2) two or more copies of the election returns of one precinct, or
two or more copies of the certificate of canvass were tabulated separately; (3)
there had been a mistake in the copying of the figures into the statement of
votes or into the certificate of canvass; or (4) the so-called returns from
non-existent precincts were included in the canvass, but such errors could not
have been discovered during the canvassing despite the exercise of due
diligence and proclamation of the winning candidate had already been made; These can also be found in Section 5 of the
same rule, except the last clause.
[8]
[9] Reproduced in this petition; rollo,
pp. 16-28.
[10] Supra.
[11] Rollo, p. 52.
[12]
[13]
[14]
[15]
[16] Sec. 241 of the Omnibus Election
Code; Bandala v. COMELEC, G.R. No. 159369, March 3, 2004, 424 SCRA 267,
272-273.
[17] Bandala v. COMELEC, supra,
citing Matalam v. COMELEC, 271 SCRA 733 (1997); Salic v. COMELEC,
G.R. No. 157007,
[18] Trinidad v. COMELEC, G.R. No.
134657, December 15, 1999, 320 SCRA 836, 842, citing Mentang v. COMELEC,
229 SCRA 666 (1994).
[19] O'Hara v. COMELEC, G.R. Nos.
148941-42, March 12, 2002, 379 SCRA 247, 259, citing Chavez v. COMELEC,
211 SCRA 315 (1992).
[20] O'Hara
v. COMELEC, supra., citing Trinidad v. COMELEC, supra.
[21] Resolution dated
[22] Resolution dated
[23] SECTION
4. Issues that May Be Raised in the
Pre-Proclamation Controversies. — The following are the proper issues that
may be raised in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the
board of canvassers; (b) The canvassed
election returns, or the certificate of canvass in appropriate cases, are
incomplete, contain material defects, appear to be tampered with or falsified,
or contain discrepancies in the same returns or in other authentic copies
thereof; (c) The election returns or
certificate of canvass were prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns or
certificates of canvass in controverted polling places were canvassed, the
results of which materially affected the standing of the aggrieved candidate or
candidates; (e) Correction of manifest
errors.
[24] SEC. 243. Issues that may be
raised in pre-proclamation controversy. - The following shall be proper
issues that may be raised in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers; (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.
[25] G.R. No. 86645,
[26] G.R. Nos. 111624-25,
[27] G.R. No. 122013,