EN BANC
G.R.
No. 185401 - HENRY “JUN” DUEÑAS, JR., petitioner versus
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ANGELITO “JETT” P. REYES, respondents.
Promulgated:
July
21, 2009
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DISSENTING OPINION
QUISUMBING, J.:
I
regret I have to register my dissent in this case. The decision gives the HRET unbridled
discretion to proceed with the revision of ballots even if the protestant
failed to show that the results of the initial revision reasonably affected the
officially proclaimed results, in direct contravention of the parameters and
guidelines that the HRET itself has set.
I elucidate, thus:
Assailed
via Petition for Certiorari and Prohibition with prayer for a Temporary
Restraining Order (TRO)[1]
is Resolution No. 08-353[2]
of the House of Representatives Electoral Tribunal (HRET) dated P320,000.00) to cover the
expenses for the said revision, and instead ordered that the said expenses be
taken from the available funds of the Tribunal.
The factual antecedents are as follows:
Petitioner
Henry “Jun” Dueñas, Jr. and private respondent Angelito “Jett” P. Reyes were
candidates for the position of Congressman in the 2nd Legislative District of
Taguig City during the May 14, 2007 synchronized national and local
elections. After the canvass of the votes
on
On June 4, 2007, Reyes filed an Election Protest Ad Cautelam[7]
before the HRET, alleging that insidious and well-orchestrated electoral frauds
and anomalies were committed in various forms in 170 of the 732 precincts in
the 2nd Legislative District of Taguig City on the day of the
elections, during the counting, and during the canvass of the election returns
which resulted in the systematic reduction of the actual votes obtained by him
and in the corresponding increase in the votes obtained by Dueñas. Reyes asked for the revision/recount of the
ballots and other election documents in 170 precincts[8]
so that the true and real mandate of the electorate may be ascertained.[9]
On
After
the issues were joined, the HRET ordered the collection and retrieval of all
ballot boxes and other election paraphernalia involved in the protest and
counter-protest to be brought to the HRET for custody.
On
July 12, 2007, the HRET issued an Order setting the date of the Preliminary
Conference on July 26, 2007,[14]
during which Dueñas and Reyes agreed, among others, that all of the protested
precincts would be revised without need of designation of pilot precincts by
Reyes pursuant to Rule 88 of the 2004 HRET Rules, since the total number of the
protested precincts was less than 50% of the total number of the precincts in
the legislative district.[15]
On
Reception
of evidence for the parties followed upon the completion of the revision of
ballots in 100% of the protested precincts and 25% of the counter-protested
precincts. After the filing of the
parties’ respective memoranda, the case was submitted for resolution.
On
It appearing that the Tribunal cannot determine the true
will of the electorate from the initial revision and appreciation of the 100%
protested precincts and 25% counter-protested precincts and in view of the
discovery of fake/spurious ballots in some of the protested and
counter-protested precincts, the Tribunal pursuant to Rule 88 of the 2004 Rules
of the House of Representatives Electoral Tribunal and Section 17, Article VI
of the Constitution, DIRECTS the
continuation of the revision and appreciation of the remaining
counter-protested precincts.
SO
ORDERED.[17]
Not agreeing with the HRET’s Order of
Wherefore, protestee’s Motion
for Reconsideration of the Order
of the Tribunal dated
On even date, the Tribunal issued another Order which directed
Dueñas to augment his cash deposit, which would be used to cover the expenses
of the revision of ballots in the remaining 75% counter-protested
precincts. The order reads:
WHEREFORE, protestee is DIRECTED to AUGMENT his
cash deposit in the amount of three hundred twenty thousand pesos (P320,000.00)
within a non-extendible period of ten (10) days from notice hereof.
SO ORDERED.[20]
On
In
his Comment/Opposition[26]
filed on
On
November 27, 2008, the HRET issued its assailed Resolution No. 08-353, which (1)
denied Dueñas’ urgent motion, (2) reiterated its October 21, 2008 Order
directing the continuation of the revision of ballots in the remaining 75%
counter-protested precincts, and (3) recalled its other Order, also dated
October 21, 2008, which required Dueñas to augment his cash deposit. The HRET instead ordered that the needed
funds for the revision be shouldered by the Tribunal.
The
HRET held that pursuant to Rule 88 of the 2004 HRET Rules and settled
jurisprudence, the Tribunal has the discretion to either dismiss the protest or
counter-protest, or to continue with the revision if necessitated by reasonable
and sufficient grounds affecting the validity of the election, with the end in
view of ascertaining the true choice of the electorate. The mere filing of a motion to withdraw/abandon
the unrevised precincts, therefore, does not automatically divest it of its
jurisdiction over the same. Moreover,
the Tribunal ruled that its task of determining the true will of the electorate
is not confined to the examination of the contested ballots. Under its plenary power, it can motu proprio review the validity of
every ballot involved in a protest or counter-protest, and the same cannot be
frustrated by the mere expedient of filing a motion to withdraw/abandon the
remaining counter-protested precincts.
Having ruled with finality that the Tribunal could not determine the
true will of the electorate of
Hence,
the present petition where Dueñas raised the following issues for our
resolution:
I.
WHETHER RESPONDENT HRET
CAN FORCE/COMPEL THE REVISION OF A PROTESTEE’S COUNTER-PROTESTED PRECINCTS,
EVEN AS THE PROTESTANT HAS FAILED TO PROVE HIS CAUSE IN THE MAIN PROTEST AND
AFTER REVISION OF ALL [100%] OF HIS PROTESTED PRECINCTS; AND DESPITE THE FACT
THAT THE PROTESTEE/PETITIONER DUEÑAS HAS MANIFESTED HIS DESIRE, AND FORMALLY
MOVED, TO WITHDRAW AND ABANDON HIS VERY OWN REMAINING COUNTER-PROTESTED
PRECINCTS.
II.
WHETHER THE RESPONDENT HRET, IN FORCING THE REVISION OF THE
UNDESIRED COUNTER-PROTEST, CAN
LEGITIMATELY BURDEN ITSELF WITH THE FINANCIAL OBLIGATION OF SHOULDERING THE
COSTS AND EXPENSES OF THE SAID UNWANTED REVISION, IN THE PROCESS, BY DISBURSING
PUBLIC FUNDS TO PURSUE AN EXERCISE
THAT IS CLEARLY INTENDED TO SOLELY BENEFIT PROTESTANT/PRIVATE RESPONDENT REYES,
A PRIVATE PARTY.[29]
The core issue for our determination is whether the HRET gravely
abused its discretion, amounting to lack or excess of jurisdiction, in issuing
the assailed resolution.
Dueñas argued in the main that the
protestant in an election protest, Reyes in this case, was the party burdened
and obligated to prove his cause.
Failing to do so, his protest must not be unduly prolonged but must be
immediately dismissed. HRET’s
declaration of its failure to ascertain the true will of the electorate after
the revision of 100% of the protested precincts had been completed clearly
demonstrated that Reyes failed in his bid.
Thus, the Tribunal gravely abused its discretion when it ordered the
continuation of the revision of ballots in the remaining unrevised precincts,
as its acts amounted to giving Reyes the underserved chance to prevail by
assisting him in speculatively searching for a basis and evidence to prove his
case, effectively taking the cudgels for him, and thereby compromising its
impartiality and independence. He also
averred that Reyes’ failure to prove his contentions and the concomitant
withdrawal of the counter-protest made the continued revision irrelevant and
unnecessary, insisting that he has the right to withdraw his protest.
Additionally, Dueñas argued that a counter-protest was designed to protect and
advance the interest of the protestee; hence, Reyes could not expect to derive
any benefit therefrom. This reason, he
urged, further justified the allowance of the withdrawal of the
counter-protest.[30]
Dueñas
also labeled as grave abuse of discretion, the Tribunal’s act of assuming the
burden of the costs of the revision. He
argued that the funds of the Tribunal should not be used for the benefit of a
private party, especially so when its only objective was to speculate whether “the failed protestant can win,” and
also because such amounted to illegal and unconstitutional disbursement of
public funds, proscribed under Article VI, Section 29 (1)[31]
of the Constitution.[32]
Dueñas added that the discretion extended to the Tribunal
pursuant to Rule 88 of the 2004 HRET Rules on whether to continue with the
revision may be exercised only when the results of the initial revision showed that
the same reasonably affected the officially-proclaimed results of the contested
election. According to him, the Tribunal
never made any determination that the results of the revision showed Reyes to
have made substantial recoveries in support of his cause. Rather, its first order which directed the
continuation of the revision was premised on its failure to determine the true
will of the electorate and its discovery of fake/spurious ballots. He further contended that in any event, the
alleged fake/spurious ballots were discovered in only 2 out of the total 170
protested precincts and in only 2 out of the 140 pilot counter-protested
precincts. The total number of alleged
fake/spurious ballots was only 75, or a little over five percent (5%) of his
1,457 lead votes; hence, it could not reasonably be inferred to have affected
the officially proclaimed results. The
fake/spurious ballots could not be made the basis for the continuation of the revision
of ballots.[33]
Furthermore,
Dueñas maintained that the difference in the results of the physical count of
ballots and the results reflected in the election returns was inconsequential. As the table[34]
herein below will show, he argued that no substantial change in the votes of
the parties occurred after the revision.
In fact, he stated, it even worked against Reyes, since the results of
the physical count yielded lower votes for the latter. Thus:
PROTEST PROPER (100%; 170 Precincts):
|
BARANGAY |
Election
Returns |
Physical
Count |
||
|
Reyes |
Dueñas |
Reyes |
Dueñas |
|
|
Bagong Tanyag |
1,399 |
2,484 |
1,394 |
2,459 |
|
|
170 |
315 |
154 |
350 |
|
|
711 |
1,139 |
703 |
1,129 |
|
|
1,605 |
2,691 |
1,590 |
2,668 |
|
|
1,245 |
1,963 |
1,234 |
1,951 |
|
TOTAL |
5,130 |
8,592 |
5,075 |
8,557 |
COUNTER-PROTEST (25%; 140 Precincts):
|
BARANGAY |
Election
Returns |
Physical
Count |
||
|
Reyes |
Dueñas |
Reyes |
Dueñas |
|
|
|
363 |
149 |
334 |
185 |
|
|
3,595 |
2,260 |
3,578 |
2,240 |
|
|
3,900 |
2,058 |
3,868 |
2,033 |
|
TOTAL |
7,858 |
4,467 |
7,780 |
4,458 |
On
In
his Comment,[37]
Reyes countered that no grave abuse of discretion may be attributed to the
Tribunal in issuing its assailed resolution.
He contended that the HRET had every right to order the continuation of
the revision of ballots after its discovery of fake/spurious ballots in favor
of Dueñas. Its pronouncement that it
could not determine the true will of the electorate, in fact, centers on this
discovery. Thus, its constitutional
mandate dictated that it ferret out the truth by completing the said
revision. The Tribunal did not intend to
favor him.[38]
Reyes
also argued that Rule 88 of the 2004 HRET Rules gave the Tribunal the
discretion to either dismiss the counter-protest or continue with the revision
based on the outcome of the initial revision and appreciation proceedings and
initial evidence presented by the parties.
The mere filing of a motion to withdraw the protest on the remaining
unrevised precincts did not divest the HRET of its jurisdiction over the
electoral protest.[39]
Furthermore,
the Tribunal may use its available funds to shoulder the cost of revision, as
this was merely an incident to its discretion under the said Rule and its
plenary powers under the Constitution.
To hold otherwise would render its mandated functions meaningless and
nugatory.[40]
The Tribunal, for its part, insisted in its Comment[41]
that it did not commit any grave abuse of discretion. It belied the claim of Dueñas that there
existed no legitimate reason to proceed with the revision of the remaining 75%
counter-protested precincts. Like Reyes,
it argued that the discovery of fake/spurious ballots created serious doubts on
the sanctity of the ballots subject matter of the protest and counter-protest. Thus, it had no other choice but to open the
ballot boxes in the counter-protested precincts and continue with its revision
in order to ascertain and determine the true will of the electorate. Moreover, it posited that the discretion
accorded to it by the Rules gave it the imprimatur to order the continuation of
the revision if based on its independent evaluation of the results of the
initial revision, the same affected the officially proclaimed results of the
contested election. Since the discovery
of fake/spurious ballots, to its mind, had a bearing on the true results of the
election, the Tribunal submitted that it was justified in issuing said order.[42]
The Tribunal also pointed out
that contrary to the belief of Dueñas, the withdrawal of the revision of
ballots was not a vested right of any party, as it must succumb to the higher
dictates of public interest—that of determining the true choice of the
people. And this determination cannot be
made to depend upon the desire of any party, but is vested solely upon the
discretion of the HRET as the “sole judge” of all contests relating to the
elections, returns, and qualifications of members of the House of
Representatives. Moreover, it averred
that under its plenary powers, it could motu
proprio review the validity of every ballot involved in a protest or
counter-protest.[43]
The Tribunal further claimed that Dueñas also had no
reason to worry or to object to its disbursement of its funds for the
continuation of revision, since the Tribunal had the allotted budget for the
same under paragraph I, (C.1) of Republic Act No. 9498,[44]
or the General Appropriations Act for Fiscal Year 2008.[45]
For a petition for certiorari
to prosper, it is incumbent upon the petitioner to show that caprice and
arbitrariness characterized the act of the court or agency whose exercise of
discretion is being assailed. This is
because grave abuse of discretion is the capricious and whimsical exercise of
judgment that amounts to lack or excess of jurisdiction. It contemplates a situation where the power
is exercised in an arbitrary and despotic manner by reason of passion or
personal hostility—so patent and gross as to amount to an evasion of positive
duty or a virtual refusal to perform the duty enjoined by, or to act at all in
contemplation of law. Grave abuse of
discretion arises when a lower court or tribunal violates the Constitution, the
law or existing jurisprudence.[46]
Crucial to our determination of whether grave abuse
of discretion tainted the issuance of the assailed resolution of the Tribunal
is Rule 88 of the 2004 HRET Rules. Said
rule provides:
RULE
88. Pilot Precincts; Initial Revision.— Any provision of these Rules to the
contrary notwithstanding, as soon as the issues in any contest before the
Tribunal have been joined, it may direct and require the protestant and
counter-protestant, in case the
protest or counter-protest involves more than 50% of the total number of
precincts in the district, to
state and designate in writing within a fixed period at most twenty-five (25%)
percent of the total number of precincts involved in the protest or
counter-protest, as the case may be, which said party deems as best
exemplifying or demonstrating the electoral irregularities or frauds pleaded by
him; and the revision of the ballots and/or reception of evidence shall begin
with such pilot precincts designated.
Upon the termination of such initial revision and/or reception of
evidence, which presentation of
evidence should not exceed ten (10) days, and based upon what
reasonably appears therefrom as affecting or not the officially proclaimed
results of the contested election, the Tribunal may direct motu proprio the continuation of the revision of ballots in the
remaining contested precincts, or dismiss the protest, or the counter-protest,
without further proceedings. (Emphasis supplied.)
Rule 88 clearly vested the Tribunal the
discretion to either direct the continuation of the revision of ballots in the
remaining contested precincts or dismiss the protest or counter-protest. However, it is also explicit in the Rules
that the exercise of this discretion is not unbridled, but one that must be
exercised within the parameters set by the Rules.
Under the said Rule, if the protest or
counter-protest involves more than 50% of the total number of precincts in the
district, the Tribunal may direct the protestant or counter-protestant to
choose the precincts questioned by him in his protest or counter-protest that
best exemplify or demonstrate the electoral irregularities or frauds pleaded by
him, but in no case shall the selected precincts be more than 25% of the total
number of precincts involved in the protest or counter-protest. The revision of ballots shall begin initially
with said pilot precincts. If the
protest or counter-protest involves less than 50% of the total number of
precincts in the district, then the entire ballots involved in the protest or
counter-protest shall be revised. The
Rules provides further that the Tribunal may motu proprio direct the continuation of the revision or dismiss the
protest or counter-protest if the results of the initial revision reasonably
show that the same affected the officially-proclaimed results of the contested election. In other words, the Tribunal can motu proprio dismiss the protest or counter-protest
if the results of the initial
revision show that such revision cannot possibly change the results of the
contested election; otherwise, the revision of the ballots in the remaining
contested precincts will continue.
All things carefully considered and viewed in their
proper perspective, it is my considered view that the Tribunal acted with grave
abuse of discretion in issuing the assailed Resolution.
In the case at bar, respondents invoked the
discretion granted to the Tribunal under Rule 88 to direct the continuation of
the revision of ballots in the remaining 75% counter-protested precincts. As I have stated, the Rules had set
guidelines for the exercise of this discretion.
At the risk of being redundant, I emphasize that the ballots in the
entire protested precincts had been revised.
Thus, there had been not only an initial revision of ballots therein,
but a total revision. Hence, with more
reason that the results thereof must show that Reyes garnered significantly
higher votes. However, there was no
categorical pronouncement as to this.
Instead, the Tribunal issued a vague Order wherein it directed the
continuation of the revision of ballots in the remaining 75% counter-protested
precincts, because it could not determine the true will of the electorate from
the initial revision and appreciation of the 100% protested precincts and 25%
counter-protested precincts and in view of the discovery of fake/spurious
ballots. The justification given for the
continuation of the revision is premised on the discovery of fake/spurious ballots,
which according to the respondents created serious doubts as to who really won
in the election.[47] The records show, however, that the
fake/spurious ballots that surfaced were inconsequential. Reyes claimed that 87[48]
fake/spurious ballots were uncovered after the revision of 100% of the
protested precincts and 25% of the counter-protested precincts, while Dueñas
said there were only 75. No matter what
the number, we do not see how such can affect the result of the contested
election. As admitted by the parties in
the preliminary conference, Dueñas enjoys a lead of 1,457 votes.[49] Eighty-seven votes are but a fraction of
Dueñas’ lead margin. What can be gleaned
from the foregoing is that respondents are only speculating that a sufficient
number of fake/spurious ballots will be discovered in the remaining 75%
counter-protested precincts and that these fake/spurious ballots will overturn
the result of the election. Thus, it was
a grave abuse of discretion for the Tribunal to order the continuation of the
said revision based on pure conjecture.
It is conceded that the mere act of filing a motion to withdraw or
abandon a counter-protest does not automatically divest the Tribunal of its
jurisdiction over the case. To have it
any other way will frustrate the intent of the Rules to accord the Tribunal the
right to proceed with the case or dismiss the same if the evidence obtaining in
the case warrants. However, to repeat,
such discretion may not be exercised wantonly and in reckless disregard of the
limitations set by the Rules.
What is apparent is
the desire of Reyes for the revision to continue in the hope that the results
therefrom would redound to his benefit, under the pretense that the paramount
interest of the electorate to know the true winner prevails over
technicalities.[50] Ultimately, what Reyes is trying to do is
underhandedly change the theory of his case by banking on the results of the
revision of ballots in the remaining 75% counter-protested precincts. This cannot be allowed.
At the outset,
Reyes seemed confident that the revision of ballots in the 170 precincts he
protested will guarantee his win. Seeing
that the revision thereof did not give him the results he was expecting, he
veered away from his original theory, and this time impugned the elections in
the precincts not involved in his protest by claiming that revision of ballots
must be brought to completion in order that the people’s choice may be
ascertained. Allowing Reyes to rely on
the results of the precincts not included in his protest to establish his case
is tantamount to allowing him to substantially amend his protest by broadening
its scope at this very late date which is not allowed under Rule 28[51]
of the 2004 HRET Rules. As the clear
import of what Reyes intended to do was violative of the Rules, the Tribunal
should not have acquiesced to the same by ordering the continuation of the
revision.
The rule in an election protest is that
the protestant or counter-protestant must stand or fall upon the issues he had
raised in his original or amended pleading filed prior to the lapse of the
statutory period for the filing of the protest or counter-protest.[52] Thus, Reyes is bound by the issue that he
essentially raised in his election protest; that is, the revision of ballots in
the 170 precincts involved in his protest will reveal the massive fraud that
transpired during the election and will confirm his victory. Besides, it is difficult to comprehend why
Reyes did not include in his protest the precincts he now questions, albeit
impliedly, if from the very start he was convinced that the election therein
was marred by electoral fraud. What can
be inferred from his act is that he did not attribute any irregularity or fraud
therein and accepts the results of the counting as is, but had to change his
stance later on as a last-ditch effort to prove his case.
While it is true that an
election contest is impressed with public interest, such that the correct
expression of the will of the electorate must be ascertained without regard to
technicalities, this noble principle, however, must not be used as a subterfuge
to hide the real intent of a party to prove his case through unacceptable
means. For it is also the policy of the
law that election contests should be decided promptly, such that title to
public elective office be not left long under cloud[53]
for the obvious reason that the term of the contested office grows shorter with
the passing of each day.[54]
Having said that the Tribunal gravely abused its
discretion in ordering the continuation of the revision of ballots in the
remaining 75% counter-protested precincts, it follows that the Tribunal had no
authority to use its own funds to cover the expenses of the said revision. Even assuming that under the circumstances it
could lawfully order the continuation of the revision, still nowhere in Rep.
Act No. 9498 does it state that the Tribunal may use its own funds for the
revision. The P49,727,000
allotted budget of the Tribunal for the adjudication of electoral contests
involving members of the House of Representatives was never intended by Rep.
Act No. 9498 to cover expenses for the revision of ballots involved in any
electoral contest. The said amount is intended to be used for personal services
and maintenance and other operating expenses.[55] As succinctly stated in Section 1 of Rep. Act
No. 9498, the funds are appropriated for the operation of the government and,
therefore, not for any other purpose.[56]
It will be a different
situation, however, if the protestant was able to reasonably demonstrate, based
on the results of the revision of ballots in the precincts he protested, that
he stood a good chance of winning, and then the counter-protestant refused to
pay for the costs of the continuation of the revision of the counter-protested
precincts yet to be revised for the sole purpose of preventing the protestant
from confirming his victory. In this
scenario, I submit that nothing prevents the HRET from relaxing or suspending
its Rules. Sadly, such is not the situation
in this case. To repeat, the protestant
has not shown that he has any chance of winning.
Accordingly, I vote to grant
the petition.
LEONARDO
A. QUISUMBING
Associate Justice
[1] Rollo, pp. 3- 46.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26]
[27]
[28]
[29]
[30]
[31] Sec. 29. (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.
x x x x
[32] Rollo, pp. 14-18.
[33]
[34]
[35]
[36]
[37]
[38]
[39]
[40]
[41]
[42]
[43]
[44] An Act Appropriating Funds for the Operation of the Government of the Republic of the Philippines from January One to December Thirty-One, Two Thousand and Eight, and for Other Purposes, begun on July 23, 2007.
[45]
[46] Cabrera
v. Commission on Elections,
G.R. No. 182084,
[47]
[48]
[49]
[50]
[51] Rule 28. Amendments; Limitations.— After the expiration of the period for the filing of the protest, counter-protest or petition for quo warranto, substantial amendments which broaden the scope of the action or introduce an additional cause or causes of action shall not be allowed. Any amendment in matters of form may be allowed at any stage of the proceedings.
x x x x
[52] Batul
v. Bayron, G.R. Nos. 157687 and 158959,
[53] Gementiza
v. Commission on Elections, G.R. No. 140884,
[54] Velez v. Varela, etc and Florido, 93 Phil. 282, 284 (1953); Almeda v. Silvosa and Ramolete, etc., 100 Phil. 844, 849 (1957).
[55] C.1 of Rep. Act No. 9498
C.1 HOUSE ELECTORAL TRIBUNAL
For general administration and support, and operations, as indicated hereunder………….P 80,841,000
New Appropriations, by Program/Project
==============================
Current_Operating_Expenditures
Maintenance and other
Personal Operating Capital
Services Expenses Outlays Total
A. PROGRAMS
x x x x
II. Operations
a. Adjudication of Electoral Contests
involving Members of the House of
Representatives 30,182,000 19,545,000 49,727,000
x x x x
[56] Section 1.
Appropriation of Funds. The
following sums, or so much thereof as may be necessary, are hereby appropriated
out of any funds in the National Treasury of the