EN BANC
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THEMISTOCLES A. SAÑO, JR., |
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G.R.
No. 182221 |
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Petitioner, |
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Present: |
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PUNO,
C. J., |
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CARPIO, |
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- versus - |
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CARPIO
MORALES, |
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VELASCO,
JR., |
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NACHURA, |
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LEONARDO-DE
CASTRO, |
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BRION,
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PERALTA, |
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COMMISSION
ON ELECTIONS, |
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BERSAMIN, |
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THE
MUNICIPAL BOARD OF |
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CANVASSERS OF DULAG, |
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ABAD,
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LEYTE,
FERDINAND A. |
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VILLARAMA,
JR., |
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SERRANO,
in his capacity as |
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PEREZ,
and |
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Acting
Chairman of the Municipal |
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MENDOZA,
JJ. |
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Board
of Canvassers of Dulag, |
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Promulgated: |
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Respondents. |
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February
3, 2010 |
x - - - - - - - - - - - - - - - -
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D E C I S I O N
This
case, with records spanning nearly 2,000 pages, revolves around the simple question
of what issues may be properly alleged in a pre-proclamation controversy.
Petitioner has valiantly and passionately argued his case and invoked every available
ground to suspend and annul a proclamation validly made. Unfortunately,
argument is not evidence; advocacy is not legitimacy. The mere invocation of the grounds of a
pre-proclamation controversy, without more, will not justify the exclusion of election
returns which appear regular and authentic on their face.
This
Petition for Certiorari filed pursuant to Rule 65 in relation to Rule 64
of the Rules of Court, assails the Resolution[1]
dated
Petitioner
Themistocles A. Saño (Saño) was the official candidate of Lakas Christian
Muslim Democrats (LAKAS-CMD) for Municipal Mayor of the
Petitioner’s
Factual Allegations
Saño
alleged that after the casting and counting of votes, at about
During
the canvassing at the Dulag Municipal Hall, Saño sought to have the contested ERs
excluded on the following grounds: massive fraud, illegal proceedings, and tampered/falsified
and obviously manufactured returns. He alleged that timely oral objections were
made, and the written Petition for
Exclusion was filed with the Municipal Board of Canvassers (MBOC)[4]
on
Saño
further alleged that in the morning of
At
around
At
around
Finally,
Saño claimed that instead of suspending the canvass as required by law and the
canvassing rules, Serrano proceeded to hastily open and canvass the contested ERs.
Despite the filing of petitioner’s Notice of Appeal, and the fact that the
exclusion of the contested ERs would materially affect the results of the election,[11]
the MBOC neither made a written ruling nor elevated the appeal to the COMELEC
together with the MBOC’s report and records of the case. Instead, the MBOC proclaimed Que as Municipal
Mayor.
Private
Respondent’s Factual Allegations
On
the other hand, Que alleged that in the early morning of
At
around
Meanwhile,
at around
At
around
At
At
around
Canvassing
resumed at
While
the ERs were being canvassed, counsel for petitioner did not immediately
manifest her intention to appeal the ruling on the canvassing of ER in the
questioned precincts. The Minutes of the Canvass provide:
|
Precinct |
Minutes |
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90-A[24] |
Precinct 90A of Envelope serial No. 015884 Envelope Seal – 0916966 (seal open) ER seal – no seal ER # 5301668 Valid Votes – 164 Spoil – 0 Excess – 0 Rejected – 0 Atty.
Palabrica asked if the result will be tallied separately. Chairman
Serrano: If it is a pre-proclamation issue, then I will separate. I am
inviting you to house rules 6 & 8. You are alleging massive fraud and [tampering
of ERs]. Atty.
Palabrica: I did lump the reasons for this objection. [I] am asking if it’s
temporarily tallied. Chairman
Serrano: You alleged that the ER [was] obviously manufactured. Atty.
Palabrica: The ER was already prepared and that is why the ballot box was
opened. The face of the ER [is] okey. Chairman
Serrano: Such ground is covered by regular protest. Asked
Lolita Ducanes, chairman and the third member. Are these your signatures? Are
these the same election returns that you signed and placed on the ballot box? Lolita
Ducanes: Yes, it’s my signature and they are the election returns that we
signed. Atty
Palabrica: Asked why the ballot box was opened. Lolita
Ducanes: It was opened in the custody group.[25] |
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30-A[26] |
At Data Envelope
# 015811 Envelope
Seal # 0915307 (seals sticking to envelope) ER
seal # - no inner seal ER
# 5301602 #
of valid ballots in compartment for valid ballots – 162 #
of spoil[ed] ballots – 0 #
of excess ballots – 0 #
of rejected ballots – 0 Atty.
Palabrica: had it noted that BEI of 30-A of Brgy. Arado did not give a
certificate of votes to the Lakas watchers. |
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58-A[27] |
At
Data Envelope
# 015854 Envelope
Seal # 0916088 ER
inner seal # - 0916087 ER
# 5301633 #
of valid ballots – 162 #
of spoiled ballots – 0 #
of excess ballots – 0 #
of rejected ballots – 0 |
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49-A[28] |
At
Data Envelope
# 015803 Envelope
Seal # 015803 – envelope partly good otherwise in good condition ER
seal # - 0915855 ER
# 5301624 #
of valid ballots – 167 #
of spoil[ed] ballots – 0 #
of excess ballots – 0 #
of rejected ballots – 0 |
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31-A[29] |
At
Envelope
Serial # - 015808 (The envelope is torn a little at the side otherwise in
good condition) ER
seal # - 0915326 ER
# 5301603 #
of valid ballots – 180 #
of spoil[ed] ballots – 0 #
of excess ballots – 0 #
of rejected ballots – 0 Chairman Serrano: Called
the BEI members: BEI
Chairman - Fatima Ychon Poll
Clerk - Jeralyn Peque, Third
Member - Noel Lagunzad. Chairman Serrano: Asked
the BEI who prepared the election return. BEI members: Replied
they were the one who prepared the election return #5301603 of Brgy. Batug. |
At
COMELEC
Proceedings
On
In
his petition, Saño argued that the MBOC violated Section 20, Republic Act (RA) No.
7166[33]
and Section 39 of COMELEC Resolution No. 7859.[34]
Petitioner also sought to exclude the
contested ERs from the canvass, on the ground that these were tampered with or
obviously manufactured. Finally, he also
sought that he be declared and proclaimed, after the exclusion of the contested
ERs, as the winning candidate for the position of Municipal Mayor of that
municipality.
Que
filed his Answer to the petition on
After
hearing the case on August 1 and 13, 2007, the COMELEC First Division directed
the parties to submit their respective memoranda.[37] Thereafter, the COMELEC issued its Resolution dated
1. Illegal composition or proceedings of the
board of canvassers;
2. The canvassed election returns are
incomplete, contain material defects, appear to be tampered with or falsified,
or contain discrepancies in the same returns or in other authentic copies
thereof as mentioned in Sections 233, 234, 235 and 236 of the Omnibus Election
Code;
3. The election returns were prepared under
duress, threats, coercion, or intimidation, or they are obviously manufactured
or not authentic; and
4. When substitute or fraudulent returns in
controverted polling places were canvassed, the results of which materially
affected the standing of the aggrieved candidate.
It is likewise settled that the above
enumeration of the grounds that [many] be properly raised in a pre-proclamation
controversy is restrictive and exclusive.
In the case at bar, as borne out by the
records, petitioner anchors his petition for the exclusion of the election
returns from Precinct Nos. 49A, 31A, 58A, 31A, and 90A on the following
grounds: that the election returns were (1) obviously manufactured; (2)
tampered or falsified; [3]that there was massive fraud; and [4] illegal
proceedings. In support thereto, petitioner attached the affidavits of his two
(2) supporters, who attested that they saw open ballot boxes from Precinct Nos.
49A, 31A, and 58A. A painstaking examination of the records, however, shows
that petitioner miserably failed to substantiate his allegations that the
election returns were obviously manufactured, tampered with, that massive fraud
attended the preparation thereof, and that the proceedings of the board were
illegal.
There is an avalanche of jurisprudence
which states that to justify the exclusion of election returns, the allegations
that the election returns were obviously manufactured must be evident from the
face of the said documents. In the case at point, however, a meticulous
examination of the contested election returns copies for the Commission, as
well as the copy for the dominant majority party indubitably showed that there
is neither a compelling nor cogent reason to warrant their exclusion.
In
the same vein, petitioner failed not only to adduce evidence but [also[ to
prove his allegation of massive fraud or illegality of the proceedings of the
board. A contrario, the MBoC had done nothing [amiss. Rather it tolerated] maximum x x x liberal
interpretation of election laws in favor of the petitioner for, despite the
clear absence of an issue cognizable as a pre-proclamation controversy and
non-compliance with the rule on submission on petitions or objections before
it, the board both under the chairmanship of Camposano and Serrano [allowed]
the petitioner x x x to submit his petition.
[It also addressed] the issues/concerns raised, as shown in the Minutes
of the Proceedings of the Board. The Board is correct in not giving credence to
petitioner’s petition for exclusion [of the questioned returns] as it has been
shown that there are no valid grounds raised thereon which falls within the
ambit of Section 234 of the Election Code.
Petitioner moved
for reconsideration[39]
but the motion was denied by the COMELEC En Banc on
Hence, this
petition.
The Parties’
Arguments
Petitioner
insists that all five contested ERs were written by only one person, and these ERs
were surreptitiously presented before the MBOC. Thus, he argues that the issues
raised before the MBOC, namely, that the contested ERs were tampered with
and/or falsified, obviously manufactured, and subject of massive fraud, are
pre-proclamation controversies as defined in Section 241 of the Omnibus
Election Code and fall within the contemplation of Section 243(b) of said Code.
As such, the contested ERs should have been excluded from the canvass. Consequently, the MBOC’s proclamation of Que
violated Section 39 of Commonwealth Act No. 7859 and Section 20 of RA 7166.
On
the other hand, Que argues that the allegations raised by petitioner on the
contested ERs are not proper in a pre-proclamation controversy; that petitioner
failed to substantiate his claim that the contested ERs were obviously
manufactured, tampered with, or falsified; and that petitioner failed to follow
the strict and mandatory procedure under Section 20 of RA 7166 and COMELEC
Resolution No. 8969 for manifesting an appeal.
Our Ruling
The petition
is without merit.
A pre-proclamation controversy, as defined in Batas Pambansa (BP)
Blg. 881, otherwise known as the Omnibus Election Code of the
any question
pertaining to or affecting the proceeding 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 appearance of the election
returns.[41]
Procedural
Matters
It is settled that a pre-proclamation controversy is
summary in character;[42]
indeed, it is the policy of the law that pre-proclamation controversies be
promptly decided, so as not to delay canvass and proclamation.[43]
The Board of Canvassers (BOC) will not look into allegations of irregularity
that are not apparent on the face of ERs that appear otherwise authentic and
duly accomplished.[44]
Consistent
with the summary character and limited scope of a pre-proclamation controversy,
Section 20 of RA 7166 lays down the procedure to be followed when ERs are
contested before the BOC.[45]
Compliance
with this procedure is mandatory, so as to permit the BOC to resolve the
objections as quickly as possible. Thus, we held in Siquian,
Jr. v. Commission on Elections[46] that:
Compliance with the period set
for objections on exclusion and inclusion of election returns is mandatory.
Otherwise, to allow objections after the canvassing would be to open the
floodgates to schemes designed to delay the proclamation and frustrate the
electorate’s will by some candidates who feel that the only way to fight for a
lost cause is to delay the proclamation of the winner. It should be noted that
proceedings before the Board of Canvassers is summary in nature which is why
the law grants the parties a short period to submit objections and the Board a short period to rule on
matters brought to them. x x x[47]
Section 20 of RA 7166 and Section 36 of COMELEC Resolution 2962 provide
that any candidate may contest the inclusion of an ER by making an oral
objection at the time the questioned return is submitted for canvass; the
objecting party shall also submit his objections in writing simultaneously with
the oral objections. The BOC shall
consider the written objections and opposition, if any, and summarily rule on
the petition for exclusion. Any party adversely affected by such ruling must
immediately inform the BOC if he intends to appeal such ruling.
After the BOC rules on the contested returns and canvasses all the
uncontested returns, it shall suspend the canvass. Any party adversely affected
by the ruling has 48 hours to file a Notice of Appeal; the appeal shall
be filed within five days. Upon receipt
of the notice of appeal, the BOC will make its report to the COMELEC, and
elevate the records and evidence.
Moreover, pursuant to
Section 235 of the Omnibus Election Code, in cases where the ERs appear to have
been tampered with, altered or falsified, the COMELEC shall examine the other
copies of the questioned returns and, if the other copies are likewise tampered
with, altered, falsified, or otherwise spurious, after having given notice to
all candidates and satisfied itself that the integrity of the ballot box and of
the ballots therein have been duly preserved, shall order a recount of the
votes cast, prepare a new return which shall be used by the BOC as basis for
the canvass, and direct the proclamation of the winner accordingly.
Based on the records of this case, we find that petitioner failed to
timely make his objections to the contested ERs.
The minutes of the proceedings before the MBOC reveal that the contested
ERs were presented for inclusion in the canvass, and then orally objected to by
the petitioner, at the following times:
|
Precinct No. |
Time of Presentation for
Canvass/Oral Objection |
Grounds for Objection |
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30-A[48] |
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Material defect |
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31-A[49] |
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Ballot boxes open |
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49-A[50] |
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Ballot boxes open |
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58-A[51] |
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Ballot boxes open |
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90-A[52] |
|
Tampering; many erasures |
However, only one written petition for exclusion was
filed for the five contested ERs at
It is also irregular that counsel for petitioner lumped all the
objections into one petition for exclusion. We recognize that this is
commonplace among election practitioners, intended for the convenience of the
advocate. However, in cases like these, where each ground for exclusion is
separate and distinct, merging written objections leads to unnecessary chaos in
proceedings before the MBOC, and – is here - as a disservice to the
clients.
No evidence that the election
returns were falsified or tampered with.
While we
are willing to overlook the procedural lapses committed by the petitioner his
manifestation and subsequent Notice of Appeal do not serve to overturn
the assailed Resolutions. We find that
the MBOC did not err in proclaiming the private respondent, since the unsubstantiated
issues raised by the petitioner were not proper for a pre-proclamation
controversy. As we explained, claims that contested ERs are obviously
manufactured or falsified must be evident from the face of the said documents
themselves.[54] But counsel for petitioner herself admitted
that “on their face”, the ERs were “okey”. Contrary to petitioner’s passionate
remonstrations, there is absolutely no indication that the contested ERs were falsified
or tampered with. As such, there was no
valid ground to delay the proclamation.
Petitioner anchors his claim of falsification and tampering on the
allegation that the genuine ERs were replaced with manufactured returns, as
evidenced by the purported similarity in handwriting of the contested ERs. Essentially, petitioner argues that the
contested ERs cannot be trusted because all five of the contested ERs were
prepared by one person; thus, no copy of the return can be trusted and there
must be a recount of the ballots. He
claims that –
the copies of the questioned election
returns for both the dominant majority party as well as submitted to COMELEC
and that of the dominant minority party, are duplicate copies of the original
which are equally tainted with irregularity.
Unfortunately, petitioner has failed to substantiate these
allegations. On this, the COMELEC En Banc ruled:
x x x First, We cannot give due
credence to the affidavits of Mr. Peter Alicando and Mr. Tancredo Saño
considering the infirm nature of affidavits. Second, affiant Saño is the
brother of herein petitioner and his affidavit may most likely be considered as
self-serving.
In Salafranca
v. Philamlife (
“It is settled that no undue importance should be given to a sworn
statement of affidavit as piece of evidence because, being taken ex parte, an
affidavit is almost always incomplete and inaccurate”.
Nevertheless, the crux of the
affidavits above-mentioned pertains to the alleged opening of a ballot box by a
man who placed several documents therein. While a picture was attached to show
a person purportedly placing something inside a ballot box, it is not safe to
assume that some irregularity indeed took place. What is worth noting is the
fact that while petitioner claims massive fraud and tampering, the pieces of
evidence only show a single ballot box being opened by an unknown person that
is for one (1) precinct alone and definitely not for five (5) precincts as
claimed by the petitioner. This notwithstanding, it is submitted that the
ground relied upon may best be addressed in a protest case.
x
x x x
Finally, an examination of the
contested election returns will show that the same appear to be regular and
devoid of any signs of tampering or that the same were manufactured. The
allegation that the same were written by one hand does not hold water. x x x[55]
(citations omitted)
Absent
any clear showing of grave abuse of discretion, this Court is bound to rely on the
findings and conclusions of the COMELEC - the authority tasked by the
Constitution to administer and enforce election laws.[56]
At any rate, even if we take a second look at the facts, petitioner has
still not proven that the ERs were spurious, falsified, or manufactured.
Consider the following:
First, LAKAS-CMD was the dominant majority party in 2007.[57]
As such, its watchers would have been
given a copy of the ERs in the questioned precincts by the BEI itself. It was never claimed that LAKAS-CMD never
received its copy of the ERs. It seems rather incredulous, therefore, that ALL
the ERs from the questioned precincts were allegedly surreptitiously
replaced.
Second,
official watchers from the camps of both LAKAS-CMD and petitioner had the
opportunity to take down the tally of votes and obtain a Certificate of Votes
from the BEI. Despite this, there has
been no allegation that the votes recorded in favor of petitioner were not the
true votes cast in the election.
Third,
the members of the BEI from the questioned precincts themselves affirmed that they
prepared the contested ERs.
Fourth,
petitioner never deigned to present any proof on his claim of similarity in
handwriting – no expert opinions, no testimony, no technical examination.
Unfortunately, it is not at all evident from the returns that these were
manufactured or fabricated.
Unlike
a pre-proclamation controversy, the annulment proceedings before the COMELEC
were not summary in character;[58]
petitioner had every opportunity to ventilate his case and substantiate his
allegations before the Commission below. This
notwithstanding, petitioner failed to present any evidence sufficient to
overcome the presumption that the contested ERs were valid.
WHEREFORE, the Petition
for Certiorari is hereby DISMISSED for lack of merit. The Resolution
of the Commission on Elections First Division dated
SO
ORDERED.
MARIANO
C.
S'>
WE CONCUR:
REYNATO S. PUNO
Chief Justice
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ANTONIO T. CARPIO Associate Justice |
RENATO C. CORONA Associate Justice |
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CONCHITA CARPIO MORALES Associate Justice |
PRESBITERO J. VELASCO,
JR. Associate Justice |
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ANTONIO EDUARDO B.
NACHURA Associate Justice |
TERESITA J. LEONARDO-DE
CASTRO Associate Justice |
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ARTURO D. BRION Associate Justice |
DIOSDADO M. PERALTA Associate Justice |
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LUCAS P. BERSAMIN Associate Justice |
ROBERTO A. ABAD Associate Justice |
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MARTIN S. VILLARAMA, JR. Associate Justice |
JOSE P. PEREZ Associate Justice |
JOSE C. MENDOZA
Associate Justice
C E R T
I F I C A T I O N
Pursuant
to Section 13, Article VIII of the Constitution, it is hereby certified 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
[1] Rollo, pp. 63-71; penned by Commissioner Romeo A. Brawner and concurred in by Commissioner Resurrecion Z. Borra.
[2]
[3]
[4] Originally composed of Election Officer Lydia S. Camposano as Chairperson, Mr. Enrique Cabaobao as Vice-Chairman, and Ms. Joquinita P. Capili as Secretary.
[5] Rollo, pp. 124-125.
[6]
[7]
[8]
[9]
[10]
[11] The total number of votes cast for the petitioner was 8,915 votes while the total number of votes cast for the private respondent was 9,092 votes. The total number of votes covered by the contested election returns is 799 votes, of which 288 were credited to petitioner and 511 were credited to the private respondent, as follows:
|
Election
Return |
Precinct
No. |
Barangay |
No
of Contested Votes |
|
|
|
|
|
Sano |
Que |
|
5301602 |
30-A |
Arado |
42 |
118 |
|
5301603 |
31-A |
Batug |
47 |
123 |
|
5301624 |
49-A |
Camote |
74 |
87 |
|
5301633 |
58-A |
Luan |
72 |
86 |
|
5301668 |
90-A |
|
_53_ |
_97_ |
|
TOTAL |
|
|
288 |
511 |
[12] Minutes on the National, Provincial, and Local May 14, 2007 Elections of Dulag,
Leyte, p. 2, Petitioner’s Annex “U” (hereinafter, Minutes); rollo,
pp. 284.
[13]
[14]
[15]
[16] Minutes, p. 4; id. at 286.
[17] Rollo, pp. 124-125.
[18] Minutes, p. 4; id. at 286.
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26]
[27] Handwritten Notes of MBOC Secretary Joaquinita Capili; Records, Vol. II, p. 45.
[28] Minutes, p. 14, rollo, p. 296.
[29]
[30]
[31] Records, Vol. I, pp. 1-45.
[32]
[33] An Act Providing For
Synchronized National And Local Elections And For Electoral Reforms,
Authorizing Appropriations Therefor, And For Other Purposes (1991).
[34] General Instructions for the
Municipal/City/Provincial and District Board of Canvassers in Connection with
the May 14, 2007 National and Local Elections (
[35] Records, Vol. I, pp. 100-140.
[36]
[37] Both petitioner and private respondent filed
their respective Memoranda on
[38] Rollo, pp. 67-69.
[39]
[40]
[41] See also Sections 233-236 of the Omnibus Election Code, which provide:
Sec.
233. When the election returns are delayed, lost or destroyed. - In case
its copy of the election returns is missing, the board of canvassers shall, by
messenger or otherwise, obtain such missing election returns from the board of
election inspectors concerned, or if said returns have been lost or destroyed,
the board of canvassers, upon prior authority of the Commission, may use any of
the authentic copies of said election returns or a certified copy of said
election returns issued by the Commission, and forthwith direct its
representative to investigate the case and immediately report the matter to the
Commission.
The
board of canvassers, notwithstanding the fact that not all the election returns
have been received by it, may terminate the canvass and proclaim the candidates
elected on the basis of the available election returns if the missing election
returns will not affect the results of the election.
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.
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 indicate 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.
Sec. 236. Discrepancies in
election returns. - In case it appears to the board of canvassers that
there exists discrepancies in the other authentic copies of the election
returns from a polling place or discrepancies in the votes of any candidate in
words and figures in the same return, and in either case the difference affects
the results of the election, the Commission, upon motion of the board of
canvassers or any candidate affected and after due notice to all candidates
concerned, shall proceed summarily to determine whether the integrity of the ballot
box had been preserved, and once satisfied thereof shall order the opening of
the ballot box to recount the votes cast in the polling place solely for the
purpose of determining the true result of the count of votes of the candidates
concerned.
[43] Omnibus
Election Code,
Section 246; Abayon v. Commission on Elections, G.R. No. 181295,
[45] SEC. 20. Procedure
in the Disposition of Contested Election Returns.
(a)
Any candidate, political party or
coalition of parties contesting the inclusion or exclusion in the canvass of
any election returns on any of the grounds authorized under Article XX or
Sections 234, 235 and 236 of Article XIX of the Omnibus Election Code shall submit their oral objection to the
chairman of the board of canvassers at the time the questioned return is
presented for inclusion in the canvass. Such objection shall be
recorded in the minutes of the canvass.
(b)
Upon
receipt of any such objection, the board of canvassers shall automatically defer
the canvass of the contested returns and shall proceed to canvass the
returns which are not contested by any party.
(c)
Simultaneous
with the oral objection, the objecting party shall also enter his objection in
the form for written objections to be prescribed by the Commission. Within
twenty-four (24) hours from and after the presentation of such an objection,
the objecting party shall submit the evidence in support of the objection,
which shall be attached to the form for written objections. Within the same
period of twenty-four (24) hours after presentation of the objection, any party
may file a written and verified opposition to the objection in the form also to
be prescribed by the Commission, attaching thereto supporting evidence, if any.
The board shall not entertain any objection or opposition unless reduced to
writing in the prescribed forms.
The evidence attached to the objection or opposition, submitted by the parties,
shall be immediately and formally admitted into the records of the board by the
chairman affixing his signature at the back of each 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 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.
[46] 378 Phil 182 (1999). .
[47]
[48]
[49] Minutes, p. 3, rollo, p. 285.
[50]
[51]
[52]
[53] Rollo, pp. 124-125.
[54] Dipatuan v. Commission on Elections, G.R. No. 86117, May 7, 1990,
185 SCRA 86, 93.
[55] Rollo, pp. 73-75.
[56] Constitution, Art. IX-C, Sec. 2(1).
[57] COMELEC Resolution No. 7877, In the Matter of the Accreditation of the Dominant Majority Party, the Dominant Minority Party, and the Other Six (6) Accredited Major Political Parties in the May 14, 2007 National and Local Elections (May 2, 2007).
[58] In Loong v. Commission on
Elections, 326 Phil. 792-793 (1996), we held that:
While,
however, the COMELEC is restricted, in pre-proclamation cases, to an
examination of the election returns on their face and is without jurisdiction
to go beyond or behind them and investigate election irregularities, the
COMELEC is duty bound to investigate allegations of fraud, terrorism, violence
and other analogous causes in actions for annulment of election results or for
declaration of failure of elections, as the Omnibus Election Code denominates
the same. Thus, the COMELEC, in the case
of actions for annulment of election results or declaration of failure of
elections, may conduct technical examination of election documents and compare
and analyze voters’ signatures and fingerprints in order to determine whether
or not the elections had indeed been free, honest and clean. Needless to say, a pre-proclamation
controversy is not the same as an action for annulment of election results or
declaration of failure of elections.