MAYOR NOEL E. ROSAL, G.R. No. 168253
Petitioner,
-
v e r s u s -
COMMISSION ON ELECTIONS,
Second Division, and
MICHAEL
VICTOR IMPERIAL,
Respondents.
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MAYOR NOEL E. ROSAL, G.R. No. 172741
Petitioner,
Present:
PUNO,
C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
- v e r s u s
- CORONA,
CARPIO
MORALES,
CALLEJO,
SR.,*
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR. and
NACHURA,
JJ.
COMMISSION ON ELECTIONS
and MICHAEL VICTOR
IMPERIAL,
Respondents. Promulgated:
March 16, 2007
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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 On July 6, 2004, the case was superseded by an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 manifestation[2]
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 2005[3] 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 read and counted by the Board
of Election Inspectors (BEI) 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 ballots[6]
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 certiorari[7] 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 resolution[8] 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 opinion[9]
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.
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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 Elections[15] 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. COMELEC[17] 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 day[21]
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. Gomez[24] 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.
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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.
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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 Code[26] 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:
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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 boxes were preserved with such care as to preclude
any reasonable opportunity for tampering with their contents, the Second
Division made the probative value of the revised ballots dependent solely on
whether spurious ballots were found among them. It failed to recognize that, in
view of 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 revised ballots could be relied on as the same ones
cast and counted during the elections could not obviously be 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 possibly have been determined by that means.
These errors on the part of the
Second Division were infinitely far from harmless; the proper legal procedure
could have made a substantial difference in the result of the election protest
and most certainly could have led to a better approximation of the true will of
the electorate. This, in the final analysis, is what election protests are all
about.
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 keeping with the
precepts laid down in this decision, the Comelec must first ascertain, after
due hearing, whether it has before it the same ballots cast and counted in the
elections. For this purpose, it must determine: (1) which ballot boxes
sufficiently retained their integrity as to justify the conclusion that the
ballots contained therein could be relied on as better evidence than the
election returns and (2) which ballot boxes were in such a condition as would
afford a reasonable opportunity for unauthorized persons to gain unlawful
access to their contents. In the latter case, the ballots must be held to have
lost all probative value and cannot be used to set aside the official count
reflected in the election returns.
WHEREFORE, the petitions are GRANTED. The April 25 and May 12, 2005 orders and the
January 23, 2006 resolution of the Commission on Elections Second Division and
the May 29, 2006 resolution of the Commission on Elections en banc in
EPC No. 2004-61 are hereby declared null
and void. The
Commission on Elections is hereby DIRECTED to determine, with utmost
dispatch and all due regard for the parties’ right to be heard, the true result
of the 2004 elections for mayor of Legaspi City. To this end, it shall:
(1)
identify
the precincts the ballot boxes of which were found intact with complete and
undamaged 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.
(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.
SO ORDERED.
WE CONCUR:
REYNATO S. PUNO
Chief
Justice
|
LEONARDO A. QUISUMBING
Associate
Justice |
CONSUELO
YNARES-SANTIAGO
Associate
Justice |
ANGELINA
SANDOVAL-GUTIERREZ
Associate
Justice |
ANTONIO
T. CARPIO Associate
Justice |
MA. ALICIA
AUSTRIA-MARTINEZ
|
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
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.
REYNATO S. PUNO
Chief Justice
* On leave
[1] Docketed as SPC No. 04-196 and raffled to the First Division of the Commission on Elections.
[2] Rollo
(G.R. No. 172741), p. 555.
[3] According to the resolution penned by Commissioner Sadain in EPC 2004-61, the date set for the commencement of revision was January 17, 2005 but petitioner asserts in his pleadings that revision actually began on January 15, 2005.
[4] Rollo (G.R. No. 168253), pp. 204-205.
[5] Id., pp. 114-190.
[6] Per 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), BEI chairmen are supposed to authenticate each ballot with their signature. Section 27 thereof reads:
Authentication of ballot. – In every case, the chairmen of the BEI shall, in the presence of the voter, affix his signature at the back of the ballot before issuing it to the voter.
Failure to authenticate the ballot shall constitute an election offense.
[7] Id., pp. 3-44.
[8] Rollo (G.R. No. 172741), pp. 97-449.
[9] Id., pp. 450-478.
[10] Id., pp. 75-96. Penned by Commissioner Resurreccion Z. Borra with the concurrence of Chairman Benjamin Abalos, Sr. and Commissioners Romeo A. Brawner and Florentino A. Tuason, Jr. Commissioner Rene V. Sarmiento took no part in the resolution.
[11] Per Resolution dated June 20, 2006. Id., p. 542.
[12] 344 Phil. 878 (1997).
[13] SEC. 2. The Commission En Banc. – The Commission shall sit en banc in cases hereinafter specifically provided, or in pre-proclamation cases upon a vote of a majority of the members of the Commission, or in all other cases where a division is not authorized to act, or where, upon a unanimous vote of all the Members of a Division, an interlocutory matter or issue relative to an action or proceeding before it is decided to be referred to the Commission en banc.
[14] Id., p. 888.
[15] G.R. No. 161418, 28 April 2004, 428 SCRA 321.
[16] Id., p. 330.
[17] 380 Phil. 780 (2000).
[18] Chan v. Regional Trial Court of Zamboanga del Norte in Dipolog City, Br. 9, G.R. No. 149253, 15 April 2004, 427 SCRA 796.
[19] Rollo (G.R. No. 172741), pp. 102-103.
[20] De Castro v. Ginete, 137 Phil. 453 (1969).
[21] Lerias v. House of Representatives Electoral Tribunal, G.R. No. 97105, 15 October 1991, 202 SCRA 808.
[22] Id.,
p. 822.
[23] Valenzuela
v. De Jesus, 42 Phil. 428 (1921).
[24] 42 Phil. 496 (1921).
[25] Id., pp. 505-508.
[26] BP 881.
[27] COMELEC Rules of Procedure, Rule 20, Sec. 11.
[28] Supra note 2.