Republic of the
Supreme Court
MAYOR VIRGILIO P. VARIAS,
Petitioner, -
versus - COMMISSION ON ELECTIONS and JOSE “JOY” D. PEÑANO, Respondents. |
G.R.
No. 189078
PUNO, C J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. Promulgated: February 11, 2010 |
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D E C I S I O N
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BRION, J.: |
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Rosal v. Commission on Elections[1] (Rosal) instructively tells us how to
appreciate revision of ballot results as against election returns in an
electoral contest, as follows:
(1) The ballots cannot be used to overturn
the official count as reflected in the election returns unless it is first
shown affirmatively that the ballots have been preserved with a care which
precludes the opportunity of tampering and all suspicion of change, abstraction
or substitution;
(2) The burden of proving that the
integrity of the ballots has been preserved in such a manner is on the
protestant;
(3) Where a mode of preserving the ballots
is enjoined by law, proof must be made of such substantial compliance with the
requirements of that mode as would provide assurance that the ballots have been
kept inviolate notwithstanding slight deviations from the precise mode of
achieving that end;
(4) It is only when the protestant has
shown substantial compliance with the provisions of law on the preservation of
ballots that the burden of proving actual tampering or the likelihood thereof
shifts to the protestee; and
(5) Only if it appears to the satisfaction
of the court or COMELEC that the integrity of the ballots has been preserved
should it adopt the result as shown by the recount and not as reflected in the
election returns.[2]
[Emphasis supplied.]
Among other arguments, petitioner
Virgilio P. Varias (Varias) asserts in
his petition[3] that the
respondent Commission on Elections (COMELEC)
gravely abused its discretion when it did not follow Rosal in resolving the appeal of the mayoralty contest between him
and respondent Jose “Joy” D. Peñano (Peñano).
He therefore asks us to annul the decision of the COMELEC’s First
Division dated December 18, 2007 and the COMELEC En Banc Resolution dated August 17, 2009 in Jose “Joy” Peñano v. Virgilio P. Varias and the Municipal Board of
Canvassers for the Municipality of Alfonso, Cavite, EAC NO. A–2-2008.
THE ANTECEDENTS
Varias and Peñano were candidates for the position of
Mayor of Alfonso,
On
8.1 Votes correctly and properly cast in favor of the protestant were deliberately misappreciated and not credited to him by the corresponding board of election inspectors;
8.2 Votes correctly and properly cast in favor of the protestant were intentionally and unlawfully counted or tallied in the election returns as votes for the protestee;
8.3 Valid votes correctly and properly cast in favor of the protestant were illegally and baselessly considered as stray;
8.4 Ballots containing valid votes of the protestant were intentionally and/or illegally misappreciated or considered as marked and declared null and void;
8.5 Votes cast in the name of the protestee in the ballots in excess of the total number voters [sic] who actually voted were illegally considered, appreciated and credited in favor of the protestee;
8.6 Votes cast in ballots prepared by persons other than those who actually voted were considered, appreciated and counted for protestee
The RTC issued on
Varias filed his Answer with
Counter-Protest. In light of the
counter-protest, the RTC reiterated its precautionary order on
The election protest proceeded in due
course and the revision of the ballots was scheduled.
Peñano presented the testimonies/affidavits
of his witnesses – poll watchers who served in Precincts/Clustered Precincts
87A,[5]
90A/90B,[6]
92A/92B[7] and
102A[8]. The witnesses-poll watchers invariably
declared that there had been irregularities in the counting of votes, i.e., tallying was done hurriedly; votes
actually for Peñano were counted in Varias’ favor; ballots for Peñano were
declared stray or marked; votes that were obviously written by two persons were
still credited to Varias’ total; the Board of Election Inspectors (BEI) of various precincts failed to
record all the poll watchers’ objections/questions on the tally.
Varias, on the other hand, presented
the testimonies/affidavits of his own witnesses – his poll watchers for
Clustered Precinct 90A/B and Precinct 87A[9]
and the Chair of the BEI of Precinct No. 92A.[10] These witnesses invariably declared that
there were no unusual incidents in their respective precincts. The poll watchers declared that they brought
the ballot boxes and other election paraphernalia to the office of the
Municipal Treasurer at the Alfonso Municipal Hall after the counting.[11]
After completion of the revision that
saw the physical count of all the protested precincts, the Revision Committee
submitted a Report[12]
showing that Peñano garnered more votes than Varias. The Report also reflected the following
observations:
1. In Precinct No. 0081A/0081B, the revisor for the Protestee made the general objection for ballots marked V-1 to V-74 as fabricated and substituted ballots.
2. In Precinct No. 0086A/0086B, one ballot was found in the compartment for spoiled ballots.
3. In Precinct No. 0087A/0087B, five (5) voters were included by Court Order as stated in Minutes of Voting. There is also an entry in the incident/irregularities in the MOV of tearing of unused ballots.
4. In Precinct No. 0087A, the revisor for the Protestant made the observation that all the ballots are genuine with COMELEC water marks and that the signature of BEI Chairman at the back of each ballot is authentic and the same with the documents found inside the ballot box.
The revisor for the Protestee made the general objection that all the ballots are substituted ballots and fabricated; the texture of the ballots do not appear the same, the lower and upper portion of the ballot where the stub was placed has too [sic] distinctive tearing, one by original tearing and one was cut by a scissors; and that different signatures appear at the back of the ballots, using two colors of ink – black and blue.
5. In Precinct No. 0090A, the envelope for valid ballots is partially torn and no lower detachable coupons were found inside the ballot box. Both revisors for the parties made substantially the same objections/observations as in Precinct No. 0087A.
6. In Precinct No. 0092A, the envelope for valid ballots is partially torn on its lower portion, only one detachable coupon was found inside the large compartment of the ballot box. Both revisors for the parties made substantially the same objections/observations as in the above precincts.
7. In Precinct No. 0095A/0095B, nine (9) voters were excluded by Court Order.
8. In Precinct No. 0101A, one (1) padlock of the ballot box was sawed by Rommel Fernando as it cannot be opened by using any of the three keys for the said precinct.
9. In Precinct No. 0102A, both revisors for the parties made substantially the same objections/observations as in the above precincts. The revisor for the Protestee made the additional observations that the paper seal for valid ballots was pasted. The lower stub in the said precinct were [sic] found in a sealed envelope.
The protagonists then moved for a
technical examination of the contested ballots on the conditions that: (1) the
examination shall be conducted by experts from the Questioned Document Division
of the National Bureau of Investigation (QDD-NBI);
and (2) the examination shall be done within the court’s premises and under its
supervision. The RTC granted the
motions.
The NBI Report
The
QDD-NBI submitted the following report/findings dated
1. 82 ballots out of
216 in favor of Peñano were written by one and the same person;
2. The signature of the Chair of the Board
of Election Inspectors in Clustered Precinct Nos. 90A/B appearing at the dorsal
side of some of the official ballots in the precinct were not written by one
and the same person;
3. The signature of the Chair of the Board
of Election Inspectors in Precinct No. 87A appearing at the dorsal side of some
of the official ballots in the precinct were not written by one and the same
person;
4. The signature of the Chair of the Board
of Election Inspectors in Precinct No. 92A appearing at the dorsal side of some
of the official ballots in the precinct were not written by one and the same
person;
5. The signature of the Chair of the Board
of Election Inspectors in Precinct No. 102A appearing at the dorsal side of
some of the official ballots in the precinct were not written by one and the
same person;
6. 29 ballots in the four precincts (87A,
90A/B, 92A and 102A) appear to have erasures of the petitioner’s name and the
corresponding superimposition of the respondent’s name; 19 of them were written
by one and the same person.
The RTC Ruling
On
while 83 votes were deducted from Varias’ total);[17]
and (3) deducting 6 votes or ballots
from Peñano’s for the following reasons: set(s) of ballots were written by one person
(WBO); entries in a single ballot were
written by two persons (WBT); or a
ballot had been marked (MB), while at
the same time 22 votes were deducted from Varias’ total for having been either
WBO, WBT or MB.
On the critical issue of whether the
ballots of Precinct 87A could be relied upon, the RTC cited and used this
Court’s ruling in Rosal v. COMELEC as
legal premise and ruled:
Prescinding from the above doctrinal principals [sic], we now determine if the ballots can still be considered as the best evidence in determining the results of the election for this precinct.
To begin with, the election protest
has contained averments regarding the irregularities in its accomplishment
during the
8.1 Votes correctly and properly cast in favor of the protestant were deliberately misappreciated and not credited to him by the corresponding board of election inspectors;
8.2. Votes correctly and properly cast in favor of the protestant were intentionally and unlawfully counted or tallied in the election returns as votes for the protestee;
x x x x
These allegations were corroborated by the testimony of Elvira Salcedo, poll watcher of the protestant who was presented as a witness for this precinct. x x x.
The ballots inside the ballot box for Precinct No. 87A echoes the allegations in the election contest and the testimony of Elvira further supports this claim. But the manner of preserving the ballots should also be inquired into so that they can be used to overturn the election return. The testimony of Elvira is wanting in this regard. However, we can see glimpses of the manner of preservation on the testimony of Nelson Dimapilis – a witness for the protestee who served at precinct 87A. He testified that after the ballots were counted, they arranged the arranged [sic] the paraphernalia used in the election in the ballot box and they brought the box in the municipal hall. As there was no evidence presented that the ballot box was not properly preserved or that it was molested after it was brought in the Municipal Hall, the court has no other option than to accept that the contents thereof remained the same while it was kept thereat. Moreover, the court sees no reason to doubt the manner of preserving of the ballot box since it was done substantially in compliance with law. At the same time, when the precautionary order was issued and during the time that the ballot box was brought before the court, the same was retrieved in the place where it is supposed to be found. Indeed, a grand conspiracy is needed in order to molest a ballot box. But since no evidence was presented to prove this, and there being (sic) as to who might have done such a thing, the court should hold that the duty of those who were tasked in the safekeeping of the ballot box was regularly done and that the ballot box was preserved in accordance with the election laws.
Indeed, the ballots in this instance are not the only mute witnesses of the result of the election. The testimony of Elvira as well as the fact that the ballot box was found in the proper place and in the custody of the proper custodian shows that the ballots retained their superior status as evidence as compared to the election return. Thus, the physical count of the ballots as made in the revision should be followed since the election return of this precinct does not reflect the choice of the voters in this precinct.[18]
When confronted with the same
discrepancies in the figures of the election returns and revision results in
Clustered Precincts 90A/90B, Precinct 92A and Precinct 102A, the RTC came to a similar
conclusion.
The RTC’s decision thus recognized at least 4 precincts where significant
variations were evident from the election returns tally, namely: Precincts/Clustered
Precincts 87A, 90A/B, 92A and 102A.
The Assailed COMELEC Rulings[19]
On appeal, the First Division of the
COMELEC affirmed the RTC’s decision, ruling that Peñano received a total of
10,314 votes while Varias garnered 10,172 votes. It reached this tally after:
1. It included the RTC-excluded Precinct 81A under a
new/different tally – Varias – 96 votes; Peñano – 72 votes;
2. It found, based on its own evaluation of all the ballots in the protested
precincts (on the contentious issues of WBO, WBT and MB), that Varias received
1,418 votes and Peñano 716.
Like the RTC, the COMELEC First Division’s
count largely relied on the results of the revision of the ballots.
On
the critical issue of whether the ballots subject of the revision could be
relied upon, the COMELEC ruled:
The above standards [referring to Rosal quoted in the RTC decision] burden the protestant of proving the integrity of the ballots before they can be used to overturn the official count. But how is integrity of the ballots established? Number 3 of the standards answers the question. If a law provides for the mode of preserving the ballots “proof must be made of such substantial compliance with the requirements of that mode as would provide assurance that the ballots have been kept inviolate notwithstanding slight deviations from the precise mode of achieving that end.” The Court then mentioned the following provisions of the Omnibus Election Code … for the safekeeping and preservation of ballots:
x x x x
Clearly,
the integrity of the ballots being referred to that has to be proven by the
protestant in an election protest refers to the integrity of the ballot boxes that contain the ballots in the place
of storage, not the ballots per se.
It
shall be recalled that as early as
The records of the case is bereft of any
report that the ballot boxes were found in the place other than the place of
storage so as to call the occasion for the protestant-appellee to prove that
the same ballot boxes were under the custody of the Municipal Treasurer of
Alfonso, Cavite.
The revision reports for the different precincts which are signed by the revisors of both parties also indicate the condition of the ballot boxes at the time they are opened for revision purposes.
In
the Revision Report for Precinct 79A (Brgy. Mangas I), the ballot box is with
Serial No. CE01-056756. It is reported
to have three Comelec padlocks, with three keys, Inner Metal Seal Nos. CE07-406141/CE07406140. As to
the space for the “Outer Metal Seal Serial No.”, it is filled with “NONE.”
In the Revision Report for Precinct No 81A/81B (Brgy. Mangas I), the ballot box is with Serial No. CE-01-056443. It is reported to have three Comelec padlocks, with three keys. The outer metal seal has serial number CE-07-406144 and Inner Metal Seal No. CE-07 406145. As to the condition of the outer and inner metal seal, the Report indicated that they are properly attached and locked.
In the Revision Report for Precinct No 77A/77B (Brgy. Mangas I), the ballot box is with Serial No. CE-01-058-033. It is reported to have three Comelec padlocks, with three keys. There is no outer metal seal and but with two (2) inner metal seals with numbers CE07406136 and CE07-406137.
In
the Revision Report for Precinct No 86A/86B (Brgy. Marahan I), the ballot box
is with Serial No. CE-01-061579. It is
reported that the ballot box is with three (3) Comelec padlocks and with three
(3) keys. The outer metal seal is with
serial number CE 07-406155 while the inner metal seal is with serial number
CE07-406156. Said seals are found to be properly
attached and have sealed the ballot box.
In the Revision Report for Precinct No 87A (Brgy. Marahan I), the ballot box is with Serial No. CE 01-063371. It is reported that the ballot box is with three (3) Comelec padlocks and with three (3) keys. The outer metal seal is with serial number CE 07 406158 and the inner seal is with serial number CE:07406157. Both outer and inner metal seals are properly locked.
In the Revision Report for Precinct No 89A/89B (Brgy. Marahan I), the ballot box is with Serial No. CE98-843512 with three Comelec padlocks with three (3) keys. The outer metal seal is with serial number CE07-406161 and the inner metal seal is with serial number CE07-406162. Both outer and inner metal seals are properly attached.
In the Revision Report for Precinct No 90A/90B (Brgy. Matagbak I), the ballot box is with Serial No. CE 01-064817 with three Comelec padlocks and three keys. The outer metal seal is with serial number CE01-64817 and the inner metal seal is with serial number CE:07406163. Both seals are properly attached.
In the Revision Report for Precinct No 95A/95B (Brgy. Marahan II), the ballot box is with serial number CE 98-044211 and with three Comelec padlocks and three keys. There is no outer metal seal but with two (2) inner metal seals with numbers CE0740674 and CE 07040673. The ballot box is properly locked.
In
the Revision Report for Precinct No 91A/91B (Brgy. Marahan II), the ballot box
is with serial number CE 01-065438. It
has three (3) padlocks and three (3) keys.
The outer metal seal is with serial number CE 07-406166 and the inner
metal seal is with serial number CE 07-406165. The ballot box is in good
condition and is properly locked.
In the Revision Report for Precinct No 92A (Brgy. Marahan II), the ballot box is with serial number CE 01-064891 with three (3) Comelec padlocks and three (3) keys. The ballot box has no outer metal seal but with two (2) inner metal seals with numbers CE007406167 and CE 007406168. The ballot box is properly locked.
In
the Revision Report for Precinct No. 102A (Brgy. Matagbak II), the ballot box
is with Serial No. CE 98-044852 with three Comelec keys (sic) and three keys. The
outer metal seal has Serial No. CE 07-406187 while the inner metal seal is with
Serial No. CE 07-406188. The ballot box
is properly locked, the outer metal seal is properly attached but the inner metal seal is already “opened.”
In
the Revision Report for Precinct No. 101A (Brgy. Matagbak II), the ballot box
is with Serial No. CE 98-047462 with three Comelec padlocks and keys. The outer metal seal is with serial number CE
07-406186 and an inner metal seal is with serial number CE 07-406165. The
ballot box is properly locked and the metal seals properly attached.
In the afore-mentioned revision reports, the metal seals for the precincts 79A, 77A/77B, 78A/78B, 95A/95B and 92A, are not properly attached. The two (2) seals are both attached on the holes provided for inner metal seals. Likewise, in Precinct No. 102A, the inner metal seal is “opened.” Considering that the Comelec padlocks locked these ballot boxes and the two seals has sealed the inner part of the ballot boxes, the mistake on the placing of the seals, by reasonable inference, can be said to have been made at the time the ballot boxes were closed at the precinct level on election day and not done after the election. As to Precinct No. 102A, although the inner metal seal is “opened,” the outer metal seal and the padlocks were properly attached.
From the foregoing, it can be reasonably
said that there was substantial compliance with statutory safety measures to
prevent reasonable opportunity for tampering with their contents. Thus, the burden of proving that actual
tampering with the contents of the ballot boxes shifted to the
protestee-appellant.
If such substantial
compliance with these safety measures is shown as would preclude a reasonable
opportunity of tampering with the ballot boxes’ contents, the burden shifts
to the protestee to prove that actual tampering took place.
To prove that ballots particularly in Precincts 87A, 90A/B, 92A and 102A are tampered, the protestee-appellant points out the following:
1. The envelopes containing the ballots in the Precinct 87A, 90A/B, 92A and 102A are partially torn and that the inner metal seal of the ballot box in Precinct 102A is already broken;
2. The ballots in precinct Nos. 87-A, 90-A/B, 92A and 102A are fabricated and substituted as they have different textures and had signatures at their dorsal portion which are significantly different from the signatures of the chairmen as found in other election documents;
3. The findings of the NBI Questioned Documents Division corroborated the observations of the revisors. It found eighty two (82) ballots filled-up by one person and that twenty-nine (29) ballots contain superimpositions of the votes for the protestant and nineteen (19) among them were made by one person;
4. At the time the election protest was filed, protestee-appellant [sic] was still the sitting mayor who had control of the affairs in the municipal hall of Alfonso where the ballot boxes were stored; and
5. The ballots in Precincts 87-A, 90-A/B, 92A and 102A lack the security marking, the signatures of the BEI chairmen are likewise forged and that the name “Peñano” is superimposed on the name “Varias.” Protestee-appellant asserts that these are pieces of evidence that proves election fraud and the lower court, therefore, erred when it preferred the ballots over the election returns.
The fact that the envelopes x x x are partially torn does not by itself prove that there was indeed tampering of the ballots, especially when the report does not indicate with specification the size and the manner the tearing was done and when the statutory safety measures are substantially complied with.
However, an examination of the envelopes pertaining to the aforesaid four precincts submitted to this Commission discloses that the torn portions are on the longer sides of the long brown envelopes. Likewise, the irregular manner by which the envelopes were torn suggests that they occurred while they are inserted into the ballot boxes.
Although the inner metal seal of Precinct No. 102A have (sic) been broken, the Report indicates that the outer metal seal and the Comelec padlocks were attached and intact at the time the ballot box for said precinct was opened.
The result of the thorough examination conducted by this Commission on all the ballots in Precincts 87A, 90A/B, 92A and 102A pertaining to the confidential security features belies the claim of the protestee-appellant that said ballots lack the security markings. This Commission, aided by the use microscope and ultra-violet light, found that ALL the ballots in the said precincts contain ALL the hidden security features. Thus, the ballots are not spurious and cannot be rejected on lack of the security features.
On the findings of the NBI Questioned
Documents Division, the same should be the proper subject of appreciation. The fact that the name Peñano is superimposed
on the name “Varias” does not conclusively prove the presence of an election
fraud. The same can be said of the
ballots allegedly filled up by one and the same person.
The protestee-appellant also fails to show
proof that the protestant-appellee, while sitting as the mayor of Alfonso,
tampered or caused the tampering of the ballots.
In all, the lower court did not err in relying on the ballots over the election returns.[20] [Emphasis supplied.]
The COMELEC En Banc denied Varias’ subsequent motion for reconsideration on the
following grounds:
1.
The motion for reconsideration was pro forma – a mere rehash of arguments
and points already passed upon by both the RTC and the First Division;
2.
Even on the merits, there is no reason to
reverse the ruling of the First Division.
There is a legal presumption that official duty has been duly performed x
x x There is absolutely nothing in the Motion for Reconsideration, no evidence,
not even a scintilla thereof, other than the simple assertion contained therein
of the allegation of supposed discrepancy, which would not be sufficient to
overturn the presumption of the regularity of the performance of the function by
the First Division of this Commission.[21]
THE PETITION
Varias faults the COMELEC for grave
abuse of discretion on the following grounds:
1.
It did not require the protestant to prove that the
integrity of the ballot boxes was preserved;
2.
It relied on the physical count of the ballots in
precincts 87A, 90A/B, 92A and 102A instead of the election returns despite
overwhelming evidence that the ballot boxes were no longer intact and that
there were irregularities in the examined ballots;
3.
It did not
invalidate the revised ballots for Peñano in the other contested precincts
despite the showing that these ballots were either marked, written by one
person per set and/or written by two or more persons;
4.
It voided the revised ballots of Varias in the other
contested precincts for being marked.
THE COURT’S RULING
We find the petition impressed
with merit.
The Parameters of Our
Review
The present petition is for certiorari under Rule 64, in relation
with Rule 65 of the Rules of Court. Under these Rules, our review is limited to
the jurisdictional issue of whether the COMELEC acted without or in excess of
its jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction.[22] Varias anchored his petition on alleged instances
of COMELEC’s grave abuse of discretion.
Grave abuse of discretion is a
concept that defies exact definition, but generally refers to “capricious or
whimsical exercise of judgment as is equivalent to lack of
jurisdiction”; the abuse of discretion
must be patent and gross as to amount to an evasion of positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion and hostility.[23] Mere abuse of discretion is not enough; it
must be grave.[24] Use of wrong
or irrelevant considerations in deciding an issue is sufficient to taint a
decision maker’s action with grave abuse of discretion.[25]
Closely related with this limitation is
the condition under Section 5, Rule 64 that findings
of fact of the Commission supported by substantial evidence shall be final and
non-reviewable. Substantial evidence
is that degree of evidence that a reasonable mind might accept to support a
conclusion.[26]
Under these rules, we do not ordinarily review in a certiorari case the COMELEC’s
appreciation and evaluation of evidence.
Any COMELEC misstep in this regard generally involves an error of
judgment, not of jurisdiction.[27] In exceptional cases, however, when COMELEC
action on the appreciation and evaluation of evidence shows grave abuse of
discretion, the Court is more than obliged, as it is then its constitutional
duty, to intervene; when grave abuse of discretion is present, resulting errors
arising from the grave abuse mutate from error of judgment to one of jurisdiction.[28]
The above limitations preclude us
from ruling on the third and fourth grounds Varias cited in his petition. These
cited grounds involve the issue of appreciation and calibration of evidence, which
in proper context cannot result in any jurisdictional error, if only because Varias
did not allege any grave abuse of discretion committed by the COMELEC in
arriving at its conclusions. The COMELEC
concluded that: (1) entries in some sets of two or more different ballots were
written by one person; (2) entries in a particular ballot were written by two
persons; and (3) a ballot had been marked.
Varias merely argued that these COMELEC findings and/or conclusions were
wrong, and from there proceeded to argue his positions. In the absence of any allegation of jurisdictional
error, no basis exists for us to proceed with a certiorari review.
In contrast to the approach taken on the
cited 3rd and 4th grounds, the petition’s approach of citing
the first two grounds is different, as Varias specifically cites and shows how
jurisdictional errors were committed under these grounds. Hence, these grounds
are open for our consideration and action, albeit under the limited review that
certiorari allows.
The
Rosal Doctrine, the Rules of Procedure in Election Contests before the Courts
Involving Elective Municipal and Barangay Officials,[29] and the Present Case
The
Rosal ruling, to be sure, does not involve issues merely related to the
appreciation or calibration of evidence; its critical ruling is on the
propriety of relying on the revision of ballot results instead of the election
returns in the proclamation of a winning candidate. In deciding this issue, what
it notably established was a critical guide in arriving at its conclusion – the
need to determine whether the court or the COMELEC looked at the correct
considerations in making its ruling. As
earlier adverted to, the court’s or the COMELEC’s use of the wrong or irrelevant considerations in choosing
between revision results and the election returns can taint its action with grave
abuse of discretion.[30]
After
Rosal, we promulgated the Rules of Procedure in Election Contests
Before the Courts Involving Elective Municipal and Barangay Officials (the Electoral Contest Rules). Under its Section 5, Rule 13, we defined
burden of proof as the duty of a party to present evidence of the facts in
issue necessary to establish one’s claim or defense. Section 6, Rule 13 of the Electoral Contest Rules
provides:
SEC. 6. Disputable presumptions. – The following presumptions are considered as facts, unless contradicted and overcome by other evidence:
(a) On the election procedure:
(1) The election of candidates was held on the date and time set and in the polling place determined by the Commission on Elections;
(2) The Boards of Election Inspectors were duly constituted and organized;
(3) Political parties and candidates were duly represented by pollwatchers;
(4) Pollwatchers were able to perform their functions; and
(5) The Minutes of Voting and Counting contains all the incidents that transpired before the Board of Election Inspectors.
(b) On election paraphernalia:
(1) Ballots and election returns that bear the security markings and features prescribed by the Commission on Elections are genuine;
(2) The data and information supplied by the members of the Boards of Election Inspectors in the accountable forms are true and correct; and
(3) The allocation, packing and distribution of election documents or paraphernalia were properly and timely done.
(c) On appreciation of ballots:
(1) A ballot with appropriate security markings is valid;
(2) The ballot reflects the intent of the voter;
(3) The ballot is properly accomplished;
(4) A voter personally prepared one ballot, except in the case of assistors; and
(5) The exercise of one’s right to vote was voluntary and free.
The Electoral Contest Rules must be
considered complementary to Rosal to
the extent that it dealt with the Rosal issues.[31]
In the present case, Varias claims
that the COMELEC showed manifest and gross partiality and bias in favor of
Peñano in appreciating the evidence in the mayoralty contest. Peñano, according
to Varias, had the burden of proving that the ballots had been preserved, yet
the COMELEC simply dismissed his (Varias) allegations of post-election fraud on
the justificatory statement that records
of the case are bereft of any report that the ballot boxes were found in a
place other than the place of storage so as to call the occasion for the
protestant-appellee to prove that the same ballot boxes were under the custody
of the Municipal Treasurer of Alfonso,
Varias additionally claims that the
conditions of the ballots found inside the ballot boxes cast a reasonable suspicion
that the ballot boxes had been violated.
First, the physical count of
the ballots in Precincts 87A, 90A/B, 92A, and 102A was very different from the
votes garnered by the parties as reflected in the election returns, the statement
of votes, and the tally board; the results in all the other precincts, on the
other hand, were substantially the same. This variation is not merely a case of
misappreciation of votes of one candidate in favor of the other, as this is a
case of ballots previously credited to a candidate literally vanishing. Varias further asserts that misappreciation of
ballots of this magnitude would not have gone unnoticed, as the parties had
their respective poll watchers in these precincts; no record whatsoever exists of
pollwatchers’ reports of irregularity of this nature during the counting of
votes. The COMELEC, Varias claims, was
silent on these discrepancies – it never tried to explain the sizeable
deduction from the votes in his (Varias) favor and the substantial addition to
Peñano’s total. Second, there is evidence coming from a neutral source – the NBI –
showing that the signatures of the BEI chairmen at the back of the ballots are
not the same as the sample signatures of the same persons in other election
paraphernalia. Third, the NBI also
found out that, in the ballots, there were superimpositions of Peñano’s name
over Varias’.
According to Varias, the totality of
the circumstances – (1) the forced opening of the padlocks of the ballot boxes
of the four controversial precincts; (2) the irregular serial numbers of the
metal seals; (3) the substantial variance of the votes of the parties in the
election returns and the physical count; (4) the different signatures at the
back of the ballots; and (5) the
superimpositions – points to the obvious fact that the ballot boxes in the four
precincts had been violated and the ballots they contained, tampered. This, he asserts, is the inescapable
conclusion that an ordinary and unbiased mind would have reached; for
unexplained reasons, the COMELEC arbitrarily and whimsically refused to see and
appreciate these irregularities. Instead,
the COMELEC went to great lengths, greater
than those reached by Peñano, to justify its conclusion that, in the four
precincts, the ballot boxes and all their contents were well preserved.
As reasonable suspicion exists that
the integrity of the ballot boxes had been violated and that tampering of
ballots had occurred, Varias asserts that the COMELEC should not have relied on
the ballots but on the results reflected in the election returns. Thus, the COMELEC gravely abused its
discretion when it acted contrary to the mandate of Rosal and relied on the results of the revision of the ballot
boxes.
We agree with Varias’ contentions, as
our own consideration of the issues raised shows that the COMELEC indeed failed
to follow Rosal. Specifically, we hold that Varias
successfully discharged the burden of proving the likelihood of ballot
tampering by presenting competent and reliable evidence – facts and
circumstances that are simply too obvious to ignore or gloss over. The COMELEC
sadly looked at the wrong considerations, thereby acting in a manner not contemplated
by law. Its actions clearly fit the “grave
abuse of discretion” definition cited above.
Rosal, we preliminarily
note, does not, as it should not, always
require direct proof of tampering; even
if the protestant has shown compliance with legal requirements for the
preservation of ballots, the burden of evidence that shifts to the prostestee
is not confined to proof of actual
tampering, but extends to its likelihood. This cannot but be a reasonable rule, since ballot
tampering and ballot substitution are not acts done openly and without
precaution for stealth; they are done clandestinely, and to require direct proof
of actual tampering almost amounts to a requirement to do the impossible. Direct proof of actual tampering is therefore
not the only acceptable evidence that negates the reliability of the ballots subjected
to revision; other relevant considerations should be taken into account, most
especially those resulting from the examination of physical evidence. By
adopting the direct proof approach in the present case, the COMELEC did not look at all the relevant considerations in ruling
on the case.
For emphasis and ease of reference,
we summarize COMELEC’s reasons for relying on the results of the revision of ballots:
a. The RTC issued precautionary orders
and allowed the parties, if they so desired, to witness the delivery and
transfer of the custody of the ballots from the Municipal Treasurer’s Office to
the RTC.
b. The ballot boxes were found in no
other place than their designated place of storage.
c. There was substantial compliance with the statutory safety measures to
prevent reasonable opportunity for tampering; this conclusion is based on the
Revision Reports showing the condition of the ballot boxes in the individual
precincts when the ballot boxes were opened for revision.
In comparison, COMELEC rejected Varias’
claimed tampering on the following reasoning:
a. The irregular manner in which the
envelopes containing the ballots were torn suggests that this incident occurred
when the envelopes were inserted in the ballot boxes.
b. As regards the broken inner metal
seal of Precinct 102A, the Report of the Revision Committee shows that the
outer metal seal and the COMELEC padlocks were attached and intact at the time
the ballot box was opened.
c.
All the ballots in Precincts 87A,
90A/B, 92A and 102A contain all the hidden security features. They are not
therefore spurious.
d.
“On the findings of the NBI
Questioned Documents Division, the same should be the proper subject of
appreciation. The fact that the name “Peñano”
is superimposed on the name “Varias” does not conclusively prove the presence
of an election fraud. The same can be
said of the ballots allegedly filled up by one and the same person.”
e.
Varias failed to show proof that
Peñano, while sitting as Mayor of Alfonso, tampered or caused the tampering of
the ballots.
For these reasons, the COMELEC
concluded that the RTC did not err in relying on the ballots.
While parts (a), (b) and (c) of the
COMELEC ruling above may arguably be reasonable, we find the COMELEC’s dismissive approach to the NBI Report
unacceptable. We note that the NBI’s
technical examination of the ballots was made upon the parties’ motion. More importantly, the technical examination
was undertaken pursuant to the provisions of the Electoral Contest Rules. These
findings, too, are based on physical evidence and speak for themselves in
demonstrating the discovered irregularities. Under these circumstances, we can
only characterize the COMELEC’s misappreciation and treatment of the Report as
a triviality to be gross and inexcusable.
Correctly appreciated, the NBI Report
is part of a chain of facts and circumstances that, when considered together, lead
to the conclusion that there was, at the very least, the likelihood of ballot
tampering. That there are
superimpositions of names in the ballots or that various sets of ballots were
written by one person indicate that the ballots had not been preserved in the
manner Rosal mandated. The COMELEC, as we quoted above, took these
indicators very lightly and simply concluded that they do not conclusively prove the presence of an election fraud. The COMELEC, in short, considered as
insignificant the finding that there had been superimpositions or that sets of
ballots were written by one person.
We add to these circumstances the NBI’s
expert finding that the ballots in each of the four precincts contained
signatures different from those of their respective BEI Chairs. This additionally raises questions on whether
these were indeed the ballots that were previously counted at the precinct
level after voting. Why the COMELEC
never mentioned that the NBI Report contained this finding is lost on us, and we
cannot accept as correct a ruling that entirely disregarded a consideration as
significant as this.
We agree with Varias that, other than
the NBI Report, there was a systematic pattern of post-election ballot
tampering, which arguments Peñano never substantially countered. As we stated
above, the dramatic changes in the tally occurred only in four out of the 14
protested precincts, yet the shaving off of Varias’ lead and accompanying
additions to Peñano’s – a classic case of dagdag-bawas
– in these four precincts were more than enough to alter the results. If votes
for Peñano were indeed erroneously and deliberately credited to Varias at the
precinct level, we agree with Varias that an irregularity of this magnitude
could not have escaped the attention of Peñano’s poll watchers. We significantly
note in this regard that the Minutes of Voting and Counting do not contain any
report of any incident of this nature. The Electoral Contest Rules presumes
that the Minutes of Voting and Counting
contain all the incidents that transpired before the Board of Election
Inspectors. To our mind, this presumption cannot be rebutted by a mere
claim that the BEI refused to enter the objections of Peñano’s poll watchers;
the disproportion between this claim and the magnitude of the supposed error at
the precinct level is simply too great for this claim to be believed. Under the circumstances, we can reasonably
conclude that there were changes in the entries in the ballots after they were
counted at the precinct level.
Varias therefore presented – via a combination of related
circumstances – more than enough substantial evidence to prove that the otherwise
invisible and supposedly impenetrable shield protecting the integrity and
sanctity of the ballots has been pierced.
While these facts and circumstances, when treated separately, do not directly
prove ballot tampering, a combined consideration thereof indicates otherwise
and unmistakably point to the conclusion that the integrity of the ballots has
been compromised. Faced with conflicting
results between a revision of questionable ballots and the official tally
reflected in the election results, a reasonable mind would immediately conclude
that the revision results cannot prevail over the election returns. Rosal instructs
us to so rule.
This conclusion will not change even in
the face of the following assertions/arguments Peñano and the COMELEC
invariably invoke: (a) that Varias belatedly raised the alleged issue of
post-election fraud – he did not question the integrity of the ballot boxes and
the ballots in his answer, in his motion to dismiss, in his preliminary
conference brief, or during the preliminary conference itself, raising the
issue only after the result of the revision of ballots had come in;[34]
(b) that Varias purportedly admitted, as stated in the RTC’s preliminary
conference order dated June 27, 2007, a discrepancy in the canvass of election
returns – the canvass reported that the total number of those who actually
voted was only 20,943 while the statement of votes showed a combined total of
21,160 votes for the position of Mayor; this fact alone, Peñano asserts, justifies
the resort to a revision of ballots and the use of the revision results;[35]
(c) that the ballots in the 4 precincts were genuine, as they bore all the
hidden security features – a presumption established by the Electoral Contests
Rules;[36]
and (d) that opinions of handwriting experts are not binding upon the COMELEC;
they are generally regarded as purely advisory in character, and the courts may
place upon them whatever weight they choose or reject them if they are found to
be inconsistent with the facts of the case or otherwise unreasonable.[37]
As a process, the technical
examination of the ballots under Rule 11, Section 1 of the Electoral Contest
Rules, takes place after completion of revision in the protest or counter-protest,
except when the protest or counter-protest involves allegations of massive ballot
substitution. Thus, we cannot fault
Varias for raising allegations of ballot tampering only after the revision of
the ballots, as this was the earliest time that the need and the opportunity presented
themselves.
We note, with respect to Varias’
purported admission of the discrepancy in the ballot count, that Peñano did not
present the RTC’s preliminary conference order dated
That the ballots are genuine does not
necessarily preclude the possibility of tampering. To be sure, superimposition
of names of candidates can be made even on genuine ballots. Whether the ballots are genuine or not is
therefore a non-issue, given clearly established evidence that the ballots have
been compromised. When tampering of ballots is proven, the compromised ballots
– whether genuine or not – cannot be valid subjects of revision in an electoral
contest.
Finally, while we agree with the
proposition that opinions of handwriting experts are not necessarily binding on
the courts or on quasi-judicial agencies, the court or the quasi-judicial agency
must still consider them as submitted evidence and reject them if rejection is
called for, providing reasons therefor.
The rejection must of course be based on the court’s or the agency’s own
independent evaluation of the pieces of evidence subjected to handwriting
examination. Without such consideration,
the court or quasi-judicial agency can be considered to have arbitrarily disregarded
the expert opinion or evidence.
In sum, we find that the COMELEC
gravely abused its discretion in declaring Peñano, based on the results of the
revision of ballots, the winner in the mayoralty contest for the
WHEREFORE,
premises considered, we GRANT the petition and accordingly ANNUL the interrelated December 18,
2007 Decision of the COMELEC’s First Division and the August 17, 2009
Resolution of the COMELEC En Banc in Jose “Joy” Peñano v. Virgilio P. Varias and
the Municipal Board of Canvassers for the Municipality of Alfonso, Cavite, EAC NO. A–2-2008. As shown by the election returns, we hereby CONFIRM the validity of the
proclamation of Virgilio P. Varias as elected Mayor of Alfonso,
SO ORDERED.
ARTURO D. BRION
Associate
Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
|
ANTONIO T. CARPIO Acting Chief Justice CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B.
NACHURA Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL
CASTILLO Associate Justice
MARTIN S. VILLARAMA, JR. Associate Justice |
RENATO C. CORONA Associate Justice PRESBITERO J.
VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE
CASTRO Associate Justice LUCAS P. BERSAMIN Associate Justice ROBERTO A. ABAD Associate Justice JOSE P. PEREZ Associate Justice |
|
JOSE C. MENDOZA Associate Justice |
|
CERTIFICATION
REYNATO S.
PUNO
Chief Justice
[1]
G.R. No. 168253,
[2] The Rosal Doctrine.
[3] Filed under Rule 64, in relation to Rule 65 of the Rules of Court.
[4] Clustered Precincts and Precincts 77A/77B; 78A/77B; 79A/79B; 81A/81B; 86A/86B; 87A; 89A/89B; 90A/90; 91A/91B; 92A/92B; 95A/95B; 100A/100B; 101A; 102A.
[5] Elvira Salcedo
[6] Lanie May Dimapilis
[7] Ligaya Mojica
[8] Lucita Leyran
[9] Nelson Dimapilis
[10] Geneilyn M. Zamora
[11] Short summary of the testimonies of the witnesses is based entirely on the RTC decision; rollo, pp. 368-408.
[12]
[13] See the NBI Report; id. at 323-367.
[14] Penned by Judge Edwin G. Larida, Jr.
[15] In the uncontested precincts, Varias received 8,754 votes while Peñano 9,598; Varias’ total in the contested precincts, under the Election Returns, was 1715; Peñano’s was 627.
[16]
The new tally for Varias in the protested precincts, after revision, was 1420, while Peñano’s total was 763.
[17] In the election return, Varias garnered 182 votes
while Peñano received 37. The action of
the latter precincts was based on its ruling that:
In
an Order dated
[18] Rollo, pp. 396-401.
[19] The decision of the First Division was penned by Commissioner Rene V. Sarmiento; the En Banc Resolution was penned by Commissioner Nicodemo T. Ferrer, with Commissioner Lucenito Tagle dissenting.
[20] Rollo, pp. 63-277.
[21]
[22] RULES OF COURT, Rule 65, Section 1.
[23] Quintos v. Commission on Elections, 440 Phil 1045 (2002).
[24] Suliguin v. Commission on Elections,
G.R. No. 166046,
[25] Pecson v. Commission on Elections, G.R. No. 182865, December 24, 2008, citing Almeida v. Court of Appeals, 489 Phil 649 (2005), where we ruled that in granting or denying injunctive relief, a court abuses its discretion when it lacks jurisdiction, fails to consider and make a record of the factors relevant to its determination, relies on clearly erroneous factual findings, considers clearly irrelevant or improper factors, clearly gives too much weight to one factor, relies on erroneous conclusions of law or equity, or misapplies its factual or legal conclusions.
[26] RULES OF COURT, Rule 134, Section 5.
[27]
See Pagaduan v. Commission on Elections,
G.R. No. 172278,
[28]
See De Guzman v. Commission on Elections,
G.R. No. 159713,
[29] A.M. No. 07-4-15-SC.
[30] Supra note 25.
[31] Rosal dealt with matters not otherwise covered now by the cited
provisions of the Electoral Contest Rules; i.e.,
the imperative need to determine whether the security measures provided by law
for preserving the ballots and ballot boxes have been followed. The application of the evidentiary
presumptions under the cited provision of the Rules must take this interplay
into account.
[32] Section 50, Resolution No. 7815 provides:
SEC. 50. Disposition of ballot boxes, keys, election returns and other documents. – Upon the termination of the counting of votes and the announcement of the results of the election in the precinct, the BEI shall:
x x x x
b. Close the inner compartments of the ballot box, lock them with one (1) self-locking fixed-length seal and then lock the outer cover with the three (3) padlocks and one (1) self-locking fixed-length seal. The three keys to the padlocks shall be placed in separate envelopes which shall be sealed and signed by all members of the BEI.
c. Deliver the ballot box to the city or municipal treasurer, accompanied by watchers. x x x
In case the ballot box delivered by the BEI was not locked and/or sealed, the treasurer shall lock and/or seal the ballot box. The treasurer shall include such fact, including the serial number of the self-locking fixed –length seal used, in his report to the Commission.
[33] This of course is not strictly accurate, as the cited Report of the Revision Committee shows that it was the lock of Precinct 101A that was forced open.
[34] See Peñano’s Comment; rollo, pp. 603-614 and the COMELEC’s Comment; id., at 615-626.
[35]
[36]
[37]
COMELEC’s Comment; id., at 615-626.