MAYOR SALIP ALOY JAINAL, G.R. No. 174551
Petitioner,
Present:
PUNO, C.J.,
-
versus - QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
COMMISSION ON ELECTIONS,
JULHATAB
J. TALIB, and CARPIO MORALES,
HUSSIN AHAJAN, CALLEJO, SR.,*
Respondents. AZCUNA,**
TINGA,
CHICO-NAZARIO, GARCIA,
VELASCO,
JR., and
NACHURA, JJ.
Promulgated:
March 7, 2007
x---------------------------------------------------------------------------
x
D E C I S I O N
Tinga, J.:
Before this Court is a Special Civil
Action for Certiorari under Rule 65 of the Rules of Court involving certain
issuances of the Commission on Elections (COMELEC) with prayer for the issuance
of temporary restraining order (TRO), status quo ante order and/or writ
of preliminary injunction.
Petitioner Mayor Salip Aloy Jainal and
private respondent Julhatab J. Talib (Talib) were duly certified candidates for
Mayor of Indanan, Sulu in the
On 23 May 2004, Talib filed a pre-proclamation
case with the COMELEC, docketed as SPC No. 04-169, praying for the annulment of
election returns pertaining to twenty-one (21) precincts, representing 3,788
votes, and for his proclamation as the Mayor of Indanan, Sulu. Talib claimed that his official watchers were
asked to leave the precincts before the counting and the preparation of the election
returns. Furthermore, the election returns for these precincts did not bear
the signatures of the members of the Board of Election
Inspectors (BEI) and his official
watchers, a fact which indicates that said election returns were manufactured. Talib
also noted that the number of votes cast exceeded the number of voters in Precinct
Nos. 33A and 34A.
Petitioner, in his memorandum,[1]
prayed for the dismissal of the Talib petition, contending that the latter’s allegations
were the proper subject of an election protest in the proper trial court.
The members of the MBC were summoned
and directed to file their verified answer to Talib’s petition.[2]
They failed to file their Answer and, despite notice, they also failed to
attend the scheduled hearing of SPC No. 04-169. They also failed to submit the
memorandum required by the COMELEC.[3]
Talib, however, presented an affidavit[4]
signed by Daryl Kinazo and Roy M. Cuevas, Chairman
and Vice-Chairman, respectively, of the MBC of Indanan, Sulu to the effect that
Indanan, Sulu was not their original station; that the stations of COMELEC
personnel were re-shuffled and they
were re-assigned to Indanan, Sulu because
the election officer originally
assigned there for canvassing was
nowhere to be found; that when they assumed their duties as members of the MBC,
they noticed that some election returns canvassed by them were materially
incomplete while others bore erasures.
On
WHEREFORE, premises considered, the instant petition is granted in part. The election returns from the following precincts are hereby annulled:
1. Precinct
33A (Barangay Kagay)
2. Precinct
34A (Barangay Kagay)
3. Precinct
17A (Barangay Buansa)
4. Precinct
18A (Barangay Buansa)
5. Precinct
19A (Barangay Buansa)
6. Precinct
20A (Barangay Buansa)
7. Precinct
21A (Barangay Buansa)
8. Precinct
22A (Barangay Buansa)
9. Precinct
9A/9B (Barangay Adjid)
The
proclamation of respondent Salip Aloy Jainal is likewise annulled. The vacancy
in the position of Indanan Mayor will be filled up pursuant to the applicable
provisions of the Local Government Code.
The
Election Officer of Indanan is ordered to convene the Board of Election
Inspectors in the abovementioned precincts, after notifying the parties
concerned and after ensuring that the integrity of the ballot boxes and the
ballots are not compromised, in order to recount the ballots cast in the
abovementioned precincts. After the recount, the new results will be canvassed
and the mayoralty winner proclaimed. If a recount is deemed not possible, he is
to make a report to the Commission so that a special election may be
immediately scheduled in the affected precincts.
Let
a copy of this resolution be forwarded to the presiding judge of the Regional
Trial Court of Jolo, Sulu hearing Election Protest Case No.
SO
ORDERED.[7]
On
On
The issues for resolution of this
Court may be summarized as follows: (1) whether Talib should have followed the
procedure outlined in Sec. 20
of Republic Act (R.A.) No. 7166 for contesting
election returns; (2) whether the
order of the Regional Trial Court of Jolo, Sulu in Election Protest Case No. 5-4-04
upholding petitioner’s proclamation as Mayor of Indanan, Sulu precludes the
COMELEC from issuing the assailed resolutions; (3) whether the COMELEC observed
the procedure outlined in Sec. 235 of Batas Pambansa Blg. 881 (Omnibus Election
Code) for annulling election returns; and (4) whether it was proper for the
COMELEC to “pierce-the-veil” of election returns.
In his Comment,[14]
Ahajan questions, as an additional issue, the validity of the
On the first issue, petitioner
contends that Talib should have followed the mandatory terms of Sec. 20 of R.A.
No. 7166[16] for
contesting election returns by appealing to the COMELEC with all the attached
evidence and forms within the reglementary period.
Indeed, Sec. 20 of R.A. No. 7166
provides for the steps, outlined below, to be undertaken by a party contesting
the inclusion or exclusion of any election return:
1) Submitting oral objections and
thereupon entering the objections in the form for written objections to be
prescribed by the COMELEC;
2) Submitting evidence in support of the
objections within twenty-four (24) hours;
3) Informing the MBC of his intention to
appeal from the MBC ruling on his objections;
4) Filing with the MBC a written and
verified notice of appeal within forty-eight (48) hours from suspension of the
canvass, and taking an appeal to the COMELEC within an inextendible period of
five (5) days from filing the notice of appeal.
However,
the provision also requires the MBC to perform certain acts, to wit:
1) Recording the oral objections in
the minutes of the canvass;
2) Automatically deferring the
canvass of the contested returns and proceeding to canvass the uncontested returns;
3) Summarily and immediately ruling
on the objections upon receipt of the evidence;
4) Entering its ruling in the
prescribed form and authenticating the same;
5) Entering in the minutes of the
canvass a party’s signified intention to appeal the ruling to the COMELEC;
6) Suspending the canvass after canvassing
all the uncontested returns and ruling upon the contested returns; and
7) Making an appropriate report to
the COMELEC immediately upon receipt of the notice of appeal, elevating
therewith the complete records and evidence submitted in the canvass, and furnishing
the parties with copies of the report.
Apparently relying on his bare
allegation, petitioner does not state in what respect and on what basis Talib
failed to comply with Sec. 20 of R.A. No. 7166. It is incumbent upon petitioner
to prove the alleged non-compliance. In the absence of such proof, there is no
aspect in the proceedings before the MBC which legally precludes Talib from
filing his petition before the COMELEC in accordance with the COMELEC Rules of Procedure.
In fact, petitioner did not even raise this issue of non-compliance with Sec.
20 of R.A. No. 7166 in his Answer[17]
and Memorandum[18] filed
before the COMELEC.
There is
no dispute that Talib had objected to the inclusion of the election returns in
question before the MBC. Petitioner admitted this in his petition before this
Court and in his Memorandum submitted to the COMELEC.[19]
Petitioner further admitted that the MBC had denied Talib’s petition to exclude
the election returns. But the MBC thereafter proceeded to canvass the election returns,
including even the contested ones, contrary to Sec. 20 (b) of R.A. No. 7166,
which requires it to automatically defer the canvass of the contested returns.
And, as may be gathered from the results of such canvass, the MBC proceeded to
proclaim petitioner as the winner of the elections.[20]
Clearly, Talib did what was required
of him by Sec. 20 of R.A. No. 7166 as far as the circumstances would allow. He
made oral objections to the inclusion of the election returns. It was then
incumbent on the MBC to immediately make a categorical ruling on the said
objections, even without the benefit of additional evidence considering that Talib’s
basic evidence consists of the questioned election returns themselves, as they
clearly depict on their face the stark absence of the printed names and
signatures of the members of the BEI in violation of Sec. 212[21]
of the Omnibus Election Code. Res ipsa loquitur. The thing speaks for itself.
In view of the absence of
the names and signatures of the members of the BEI on the returns, the MBC was
further duty bound to comply with Section 212 and Section 234[22]
of the Omnibus Election Code. Said provisions respectively allow and require the
MBC to summon the members of the BEI to complete the election returns and/or correct
the same should it appear that some requisites in form or data are omitted in
the election returns.
Assuming, however, that Sec. 20 of
R.A. No. 7166 was not complied with, Talib cannot be faulted or made to suffer for
such non-compliance as it was the MBC who did not comply with its duties under Sec.
20 of R.A. No. 7166. When Talib made his objections to the inclusion of the
contested election returns, there was no other recourse for the MBC except to
rule on the objections, suspend the canvass of the contested election returns,
and suspend the proclamation of petitioner, in that sequence. Instead of doing
so, the MBC, after ruling on the objections, included the contested returns in
the canvass and immediately proclaimed petitioner.
These actions of the MBC rendered it impossible
for Talib to comply with Sec. 20 of R.A. No. 7166 any further. It should be
noted that the forty-eight (48)-hour period for filing a verified notice of
appeal with the MBC is reckoned from suspension of the canvass. The appeal to
the COMELEC is also reckoned five (5) days from suspension of the canvass.
Understandably, Talib had no other recourse but to go directly to the COMELEC.
It is worthy of note that what was
filed with and resolved by the poll body is a pre-proclamation case. Pre-proclamation
cases refer 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 of political parties before the board or directly
with the Commission, or any matter raised under Sections 233, 234, 235 and 236
in relation to the preparation, transmission, receipt, custody and appreciation
of election returns.[23]
The general rule is that a pre-proclamation
case before the COMELEC is, logically, no longer viable after a proclamation
has been made.[24]
However, this rule admits of exceptions,[25]
as when the proclamation is null and void. The proclamation of petitioner in
this case is void for three (3) reasons: (1) it was based on a canvass that
should have been suspended with respect to the contested election returns; (2)
it was done without prior COMELEC authorization which is required in view of
the unresolved objections of Talib to the inclusion of certain returns in the
canvass; and (3) it was predicated on a canvass that included unsigned election
returns involving such number of votes as will affect the outcome of the
election. In this regard, it has long been recognized that among the reliefs
that the COMELEC may grant is to nullify a proclamation or suspend the effects
of one.[26]
Parenthetically, the absence of the
required signatures and thumbmarks rendered the election returns concerned
materially defective. The crucial circumstance also served as a proper subject
of a pre-proclamation controversy, particularly falling under paragraph (b) of
Section 243 of the Omnibus Election Code,[27]
which the COMELEC resolved in the assailed issuances.
On the second issue, petitioner calls
the attention of this Court to the
Note that Election Protest Case No.
Verily, the order of the trial court
in the election protest case does not conflict with nor diminish the legal
effect of the COMELEC en banc Resolution of 18 September 2006, invalidating
eight (8) of the nine (9) questioned election returns. Particularly, the order
is not inconsistent with the directive of the COMELEC to the Election Officer
of Indanan to convene the BEI in the concerned precincts for a recount, after
notice to the parties and after ensuring that the integrity of the ballot boxes
are not compromised. The order of the trial court directed a dismissal of the
election protest on a technicality, that is, for failure of Isnaji as
protestant to prosecute the protest.[30] No
election returns were examined and no ballots revised. The questioned election
returns could not have been examined before the trial court because they were already
with the COMELEC at that time in connection with Talib’s pre-proclamation case.
The trial court perfunctorily considered the report of the Revision Committee
and on that basis concluded that it was no longer necessary to continue with
the case because of petitioner’s “enormous lead” over Isnaji, not Talib.
Although denominated as a respondent
in Election Protest Case No.
On the third issue, petitioner
contends that the COMELEC acted prematurely and precipitately in annulling the
questioned election returns as well as his proclamation as Mayor, without first
observing the procedure outlined in Sec. 235 of the Omnibus Election Code. Said
provision states:
Sec. 235. When election returns appear to be tampered with or falsified. ─ If the election returns submitted to the board of canvassers appear to be tampered with, altered or falsified after they have left the hands of the board of election inspectors, or otherwise not authentic, or were prepared by the board of election inspectors under duress, force, intimidation, or prepared by persons other than the member of the board of election inspectors, the board of canvassers shall use the other copies of said election returns and, if necessary, the copy inside the ballot box which upon previous authority given by the Commission may be retrieved in accordance with Section 220 hereof. If the other copies of the returns are likewise tampered with, altered, falsified, not authentic,
prepared under
duress, force, intimidation, or prepared by persons other than the members of
the board of election inspectors, the board of canvassers or any candidate
affected shall bring the matter to the attention of the Commission. The
Commission shall then, after giving notice to all candidates concerned and after
satisfying itself that nothing in the ballot box indicates that its identity
and integrity have been violated, order the opening of the ballot box and,
likewise after satisfying itself that the integrity of the ballots therein has
been duly preserved shall order the board of election inspectors to recount the
votes of the candidates affected and prepare a new return which shall then be
used by the board of canvassers as basis of the canvass.
Contrary to petitioner’s contention,
the COMELEC fully complied with this Court’s exhortation in Dagloc v.
COMELEC[32] that
the above-quoted provision be followed to ascertain the will of the electorate.
Indeed, the COMELEC did not instantaneously nullify the questioned election
returns as claimed by petitioner. Utilizing the first procedure contained in
the first sentence of Sec. 235, the COMELEC used other copies of said suspect election
returns, namely the election returns submitted by Talib. When this was not
enough, it even resorted to an examination of the COMELEC copies. And when it
was evident that the election returns for the nine (9)[33]
precincts were manufactured or fabricated because the printed names and
signatures of the members of the BEI were absent, it was only then that the
COMELEC annulled the said election returns[34]
and petitioner’s proclamation.[35] The COMELEC
thereafter ordered the Election
Officer of Indanan to convene the BEI
in the concerned precincts for a recount, if possible, or to report to the
COMELEC the impossibility of a recount so that a special election can be
immediately scheduled. Clearly, the issuances of the COMELEC can hardly be
described as precipitate and premature.
Finally, the fourth issue. Petitioner
claims that in the absence of strong evidence, the election returns must be
accorded prima facie status as bona fide reports on the count.
It
is a well-entrenched rule in jurisprudence that in a pre-proclamation
controversy, the board of canvassers and the COMELEC are not to look beyond or
behind election returns which are on their face regular and authentic returns.[36] In
Chu v. COMELEC,[37] aside
from reiterating the rule against piercing the veil of returns, this Court intimated
that a pre-proclamation case is the proper remedy if the defects and irregularities
are apparent from a physical inspection of the election returns.
In
the case at bar, the COMELEC did not have to look at other evidence to conclude
that the election returns were manufactured because the defects were apparent
on the face of the election returns themselves. In fact, a detailed description
of each questioned election return was provided in the Resolution of the
COMELEC (2nd Division).[38]
Before
we close, we note with disapproval the action taken by petitioner when, on 3
October 2006, he filed with the COMELEC en banc the Extreme Urgent
Ex-Parte Manifestation, praying for an order suspending the implementation
and execution of the 22 March 2005 and 18 September 2006 COMELEC resolutions. Clearly,
the move is violative of the prohibition against forum-shopping.
There
is forum-shopping when a party seeks to obtain remedies in an action in one
court, which had already been solicited, and in other courts and other
proceedings in other tribunals.[39]
Forum-shopping, an act of malpractice, is considered as trifling with the
courts and abusing their processes. It is improper conduct and degrades
the administration of justice. If the act of the party or its counsel
clearly constitutes willful and deliberate forum-shopping, the same shall
constitute direct contempt, and a cause for administrative sanctions, as well
as a ground for the summary dismissal of the case with prejudice.[40]
In
the case at bar, the relief sought in the Extreme Urgent Ex-Parte Manifestation
is basically the same as the prayer for a temporary restraining order in
the present petition which was still pending resolution by this Court at the
time the Extreme Urgent Ex-Parte Manifestation was filed before the
COMELEC. However, for as long as the present petition, including the prayer for
injunctive relief, pends before this Court, the assailed COMELEC resolutions
remain presumptively valid. With the filing of the present petition, only this
Court has jurisdiction to nullify the COMELEC resolutions or suspend their
enforcement.
Another
violation of the ban against forum-shopping lies in petitioner’s failure to
inform this Court of its filing of the Extreme Urgent Ex-Parte Manifestation
with the COMELEC. Such undertaking is prescribed by Sec. 5,[41]
Rule 8 of the Rules of Court and conformably with such prescription, petitioner
assumed the undertaking by executing the certification against forum-shopping
in the present petition.[42]
What
is worse than petitioner’s forum-shopping is the poll body’s favorable action
on petitioner’s Extreme Urgent Ex-Parte Manifestation despite knowledge of
the pending petition with this Court. Such action on the part of COMELEC should
not be countenanced and deserves disapprobation.
Under
Sec. 13, Rule 18 of the COMELEC Rules of Procedure, a decision or resolution of
the Commission en banc in Special Actions and Special Cases[43]
shall become final and executory after five (5) days from its promulgation
unless restrained by this Court. Clearly, the effects of the
Quite
plainly, the
With
the nullification of petitioner’s proclamation, the position of Municipal Mayor
of Indanan, Sulu is vacant. The Local Government Code is clear on the matter of
succession. Sec. 44 of R.A. No. 7160 and Art. 83, Rule XIV of the Implementing
Rules of the Local Government Code governing vacancies and succession, quoted below,
apply:
Sec. 44. Permanent Vacancies in the Offices of the
Governor, Vice Governor, Mayor, and Vice Mayor. ─ If a permanent
vacancy occurs in the office of the governor or mayor, the vice-governor
or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices
of the governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member or, in case of his
permanent inability, the second highest-ranking sanggunian member, shall become the governor, vice governor, mayor or
vice mayor as the case may be.
Subsequent vacancies in the said office shall be filled automatically by
the other sanggunian members according to their ranking as defined herein:
(b) If a permanent vacancy occurs in the office
of the punong barangay, the highest ranking sanggunian barangay member or, in
case of his permanent inability, the second highest ranking sanggunian member,
shall become the punong barangay.
(c) A tie between or among the highest ranking
sanggunian members shall be resolved by the drawing of lots.
(d) The successors as defined herein shall serve
only the unexpired terms of their predecessors.
For purposes of this
Chapter, a permanent vacancy arises when an elective local official fills a
higher vacant office, refuses to assume office, fails to qualify, dies, is
removed from office, voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his office.
For purposes of
succession as provided in this Chapter, ranking in the sanggunian shall be
determined on the basis of the proportion
of votes obtained by each winning candidate to the total number of
registered voters in each district in the immediately preceding local election.
[Emphasis supplied.]
The
Implementing Rules of the Local Government Code provides in Art. 83, Rule XIV:
Art.
83. Vacancies and Succession of
Elective Local Officials. ─ (a) What constitutes permanent vacancy - A
permanent vacancy arises when an elective local official fills a higher vacant
office, refuses to assume office, fails to qualify, dies, is removed from
office, voluntarily resigns, or is otherwise permanently incapacitated to
discharge the functions of his office.
(b)
Permanent vacancies in the offices of the governor, vice governor, mayor and
vice mayor –
(1) If a
permanent vacancy occurs in the office of the governor or mayor, the
vice governor or vice mayor concerned shall ipso facto become the
governor or mayor. If a
permanent vacancy occurs in the offices of the
governor, vice governor, mayor, or vice mayor, the highest ranking
sanggunian member or, in case of his permanent inability, the second highest
ranking sanggunian member, shall ipso facto become the governor, vice governor,
mayor or vice mayor, as the case may be.
Subsequent vacancies in the said office shall be filled automatically by
the other sanggunian members according to their ranking as defined in this
Article.
x x x x [Emphasis Supplied.]
Verily,
the vacancy created by the nullification of petitioner’s proclamation is in the
nature of a permanent vacancy and may be qualified as a “permanent incapacity
to discharge the functions of his office.” Ahajan’s assumption of the office of
Mayor should be understood as subject to the result of the recount to be
conducted in accordance with the issuances of the COMELEC. Thus, there is an
immediate need for the COMELEC to speedily ascertain the true will of the
electorate in the eight (8) precincts whose election returns were
nullified.
WHEREFORE,
premises considered, judgment is hereby rendered as follows:
1) The instant
petition for certiorari is DISMISSED;
2)
The Commission on Elections (2nd
Division) Resolution dated
3)
The Commission on Elections is ORDERED to IMPLEMENT
its RESOLUTION of
4)
The
5)
Private respondent Hussin Ahajan is ORDERED to
assume the position of Acting Mayor of Indanan, Sulu, pursuant to the
applicable provisions of the Local Government Code, but subject to the outcome
of the recount to be concluded in accordance with the above-mentioned
Resolutions of the Commission on Elections; and
6)
Petitioner and his counsel are REQUIRED
to show cause, within five (5) days from notice, why they should not be held in
contempt by this Court for committing forum-shopping.
In
view of the proximity of the next elections, this Decision is declared FINAL
and IMMEDIATELY EXECUTORY.
DANTE O. TINGA
Associate Justice
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 Associate
Justice |
RENATO C. CORONA Associate Justice |
|
CONCHITA CARPIO MORALES Associate
Justice |
(On Leave) ROMEO J. CALLEJO, SR. Associate Justice |
|
(On Official Leave) ADOLFO S. AZCUNA 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 Article VIII, Section 13
of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
[5]Rollo, pp. 38-51. Penned by Presiding Commissioner Mehol K. Sadain and concurred in by Commissioners Florentino A. Tuason, Jr. and Manuel A. Barcelona, Jr.
[6]This is an election protest case filed by Khan Isnaji (Isnaji), the third candidate for Mayor, against petitioner and Talib before the Regional Trial Court, Branch 4, Parang, Sulu.
[8]
[9]Considering that there is only one election return for Precinct 9A and 9B, i.e. E.R. No. 01400049, the declaration of validity refers to the apparently merged Precinct Nos. 9A/9B.
[10]Rollo, pp. 28-37.
[11]
[12]See Expediente, G.R. No. 174551.
[13]Rollo, p. 148-150.
[14]Admitted
per Court resolution dated
[15]Ahajan
took his oath of office and assumed the position of Mayor on
[16]Entitled “AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS AND FOR ELECTORAL REFORMS, AUTHORIZING APPROPRIATIONS THEREFOR, AND FOR OTHER PURPOSES.” Sec. 20 thereof reads:
SEC.
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 an 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 and 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 returns 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 the 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 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. [Emphasis supplied.]
[19]In
his Petition before this Court, petitioner admitted that “[w]hen the questioned
election returns were petitioned by Talib for exclusions due to misplaced
unmeritorious grounds, the [MBC] correctly denied his petition.” (See rollo,
pp. 10) This admission is also contained in his Memorandum filed before the
COMELEC. In said pleading, petitioner stated that “[w]hen the questioned
returns were petitioned by TALIB for exclusion, due to misplaced unmeritorious
grounds, the [MBC] correctly denied his petition.” (See COMELEC Records, pp. 42-43)
[20]See
Certificate of Canvass of Votes and Proclamation of the Winning Candidates for
Municipal Offices, COMELEC Records, p. 62.
[21]Sec. 212. Election returns. – The board of election inspectors shall prepare the election returns simultaneously with the counting of the votes in the polling place as prescribed in Section 210 hereof. The return shall be prepared in sextuplicate. The recording of votes shall be made as prescribed in said section. The entry of votes in words and figures for each candidate shall be closed with the signature and the clear imprint of the thumbmark of the right hand of all the members, likewise to be affixed in full view of the public, immediately after the last vote recorded or immediately after the name of the candidate who did not receive any vote.
x x x x
If the signatures and/or thumbmarks of the members of the board of
election inspectors or some of them as required in this provision are missing
in the election returns, the board of canvassers may summon the members of
the board of election inspectors concerned to complete the returns.
[Emphasis supplied.]
[22]Sec. 234. Material defects in the election returns.- If it should clearly appear that some requisites in form or data had been omitted in the election returns, the board of canvassers shall call for all the members of the board of election inspectors concerned by the most expeditious means, for the same board to effect the correction. Provided, That in case of the omission in the election returns of the name of any candidate and/or his corresponding votes, the board of canvassers shall require the board of election inspectors concerned to complete the necessary data in the election returns and affix therein their initials: Provided, further, That if the votes omitted in the returns cannot be ascertained by other means except by recounting the ballots, the Commission, after satisfying itself that the identity and integrity of the ballot box have not been violated, shall order the board of election inspectors to open the ballot box, and, also after satisfying itself that the integrity of the ballots therein has been duly preserved, order the board of election inspectors to count the votes for the candidate whose votes have been omitted with notice thereof to all candidates for the position involved and thereafter complete the returns.
The right of a candidate to avail of this provision shall not be lost or
affected by the fact that an election protest is subsequently filed by any of
the candidates. [Emphasis supplied.]
[23]Sandoval v. COMELEC, 380 Phil. 375 (2000).
[24]See Laodenio v. COMELEC, 342 Phil. 676` (1997); Atty. Torres v. Commission on Elections, 337 Phil. 270 (1997); Gallardo v. Rimando, G.R. No. 91798, 13 July 1990, 187 SCRA 463; Casimiro v. COMELEC, G.R. Nos. 84462-63, 29 March 1989, 171 SCRA 468 (1989); Salvacion v. COMELEC, G.R. Nos. 84673-74, 21 February 1989, 170 SCRA 513; Padilla v. COMELEC, G.R. Nos. 68351-52, 9 July 1985, 137 SCRA 424.
[25]See
also Laodenio v. COMELEC, supra note
22 at 687, where the Court enumerated the exceptions as where: (a) the board of
canvassers was improperly constituted; (b) quo
warranto was not the proper remedy;
(c) what was filed was not really a petition for quo warranto or an election protest but a petition to annul a
proclamation; (d) the 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.
[26]See
Lorenzo v. COMELEC, 463 Phil. 863,
869 (2003) citing Albano v. Arranz, 114
Phil. 318 (1962); Demafiles v. COMELEC,
129 Phil. 792 (1967); Aguam v. COMELEC,
132 Phil. 353 (1968).
[27]See
Espidol v. COMELEC, G.R. No. 164922,
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 Sec. 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 affect the
standing of the aggrieved candidate of candidates.
[28]Infra note 2.
[29]Rollo, pp. 68-71.
[30]Isnaji
failed to attend three hearings on petitioner’s motion to dismiss the election
protest. While the first hearing was re-scheduled upon Isnaji’s request, he
failed to attend the re-scheduled hearing and the next hearing after that. The
trial court based its ruling on Sec. 3, Rule 17 of the Rules of Court.
[31]See Samad v. COMELEC, G.R. Nos. 107854
& 108642,
[32]463 Phil. 263 (2003).
[33]The
COMELEC En banc modified this finding by declaring valid the election
returns for Precinct No. 9A of Barangay Adjid.
[34]Citing
Lagumbay v. COMELEC and Climaco, 122
Phil 1274 (1966).
[35]Citing Antonio, Jr. v. COMELEC, 143 Phil. 241 (1970).
[36]
[37]
[38]The COMELEC (2nd Division) came out with the following conclusions with regard to the annulled election returns (see rollo, pp. 44-47):
Precinct 33A (E.R. No. 014000087) – This election return is obviously manufactured. There are no signatures in the space provided for certification by BEI members. The printed names of the BEI members appear to be written by one person. Instead of signatures of BEIs as closing of entry of votes, the notation “1st,” “2nd” and “3rd” appeared at the end of the entry of votes per candidate. The box of data on voters and ballots was left blank. The name of [Talib] was even written twice in the list of candidates for Mayor. [Petitioner] got 113 votes while [Talib] got three.
Precinct 34A (E.R. No. 01400086) – This election return is obviously manufactured. There are no signatures by the three BEI members. There was a printed name only on the space for the poll clerk. Instead of signatures, the sign “”L” and “M” were used to close the entry of votes. They appear to be written by one person. Likewise, there was no thumbmark in the closing and in the certification. [Petitioner] got 118 votes while [Talib] got eight.
x x x x
Precinct 17A (E.R. No. 014000095) – This election return is obviously manufactured. The printed name and signatures of the BEI members appear to be written by one person. There was no tally and thumbmark to close the votes. The box for data on voters and ballots were unfilled. All other candidates for Mayor got zero votes while [petitioner] got 157 votes.
Precinct 18A (E.R. No. 014000074) – The election return is obviously manufactured. There is no signature on the space for BEI Chair on the second page and the signature of the other members appear to be signed by one. There are no printed names on the space for BEI members. There was also no thumbmark from the BEI Chair on the space provided in pages 1 and 2 of the election return for precinct 18A. The votes on the second page containing the votes of the provincial board members and mayoralty candidates were not even totaled. No thumb marks were attached to mark the closing of entry of votes. Likewise, the box for data on voters and ballots was not filled up. [Petitioner] got 155 votes while [Talib] got one vote.
Precinct 19A (E.R. No. 014000059) – This election return is obviously manufactured. There are no printed names for the Chairman and Third Member. The poll clerk did not attach his signature. There were no signatures and thumb marks to mark the closing of entry of votes. The box for data on voters and ballots was not filled up. There was likewise no tally of votes for individual candidates. [Petitioner] got 165 votes while [Talib] got one vote.
Precinct 20A (E.R. No. 014000061) – This election return is obviously manufactured. The printed name and signatures of the BEI member appear to be written by one person. There was no tally and thumbmark to close the votes. [Petitioner] got 174 votes while [Talib] got one vote.
Precinct 21A (E.R. No. 014000055) – This election return is obviously manufactured. The printed name and signatures of the BEI members appear to be written by one person. This same person appears to have also written the names and signatures of the watchers who supposedly signed the return. There was no thumbmark to close the votes. The box for data on voters and ballots was left unfilled. [Petitioner] got 102 votes while [Talib] got two votes.
Precinct 22A (E.R. No. 014000057) – This election return is obviously manufactured. The printed name and signatures of the BEI members appear to be written by one person. There was no tally, signature and thumbmark to close the votes. [Petitioner] got 133 votes while [Talib] got 14 votes.
[39]Balite v. Court of Appeals, G.R. No. 140931, 26 November 2004, 444 SCRA 410, 421 citing MB Finance Corporation v. Abesamis, 195 SCRA 592 (1997).
[40]Balite v. Court of Appeals, G.R. No.
140931,
[41]Said rule provides:
SEC. 5. Certification against forum shopping. –The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.
[42]Rollo, p. 25.
[43]Under
Sec. 5, Rule 1, Part I, COMELEC Rules of Procedure, “Special Cases” shall refer
to pre-proclamation cases.
[44]See also Santos v. COMELEC, 447 Phil. 760 (2003) where we found that the
COMELEC committed grave abuse of discretion in giving due course, instead of
dismissing outright, a petition before it despite the clear showing that there
was forum-shopping.
See also Bayan Muna v.
Commission on Elections, G.R. No. 147613, 18 February 2003, where this
Court found the Chairman and the members of the COMELEC guilty of contempt and
required them to pay a fine in the amount of P20,000 for “degrading the
dignity of this Court; for brazen disobedience to its lawful directives, in
particular its Temporary Restraining Order dated May 9, 2001; and for delaying
the ultimate resolution of the many incidents of this case, to the prejudice of
the litigants and of the country.” The COMELEC was also warned that a
repetition of the same or similar acts shall be dealt with more severely in the
future.