G.R. No. 189078 (Mayor Virgilio P. Varias v. Commission on Elections and Jose
Promulgated:
February
11, 2010
x ---------------------------------------------------------------------------------------- x
DISSENTING OPINION
VELASCO, JR., J.:
When the sovereignty of the people expressed
by the electorate via the ballot is at stake, everything should be done to have
that sovereignty obeyed by all.[1]
The primary duty to ascertain by all feasible means the will of the electorate
in an election belongs; it has broad powers to ascertain the true results of an
election by all means available to it.[2] And in the discharge of this duty, the
Comelec’s factual determination, in the course of appreciating contested ballots
and election documents, cannot be overturned by the Court, unless it is clearly
tainted with grave abuse of discretion.[3]
With the above doctrinal
pronouncements in mind, I am constrained to register my dissent to the ponencia which I earnestly believe
trifles with settled jurisprudence.
The records yield the following
relevant background facts:
After the canvas of all election
returns in the May 14, 2007 elections for the position of municipal mayor of
Alfonso,
The election protest proceeded in due course
and the revision of ballots and reception of evidence were set and conducted.[5]
Forthwith, the revision committee submitted revision reports after which the
two rivals moved for and agreed to a technical examination of the contested
ballots to be undertaken by the Questioned Document Division (QDD) of the
National Bureau of Investigation (NBI). The NBI would later also submit its
report.
Following the appreciation of the contested
ballots, the RTC rendered, on December 17, 2007, judgment finding Peñano the
winning mayoralty candidate, having garnered 10,312 votes as aganst 10,208 of
Varias. In that decision which eventually paved the way for Peñano’s proclamation, the court found four
(4) protested precincts, i.e., Precinct
Nos. 87A, 90A/B, 92A/B and 102A, as swing voting centers in view of the
significant difference between the ballot count results and the election
returns tally in the corresponding precinct in question. The RTC invoked Rosal v. COMELEC [6] to
support its ruling.
Varias then repaired to the Comelec
where its First Division, by Resolution of December 17, 2008, dismissed his
appeal. Per the First Division’s appreciation of the case and the contested
ballots, Peñano won by a margin of 142
votes, slightly higher than the 140 votes determined by the RTC. The en banc Commission would
subsequently deny, by another resolution, Varias’ motion for reconsideration,
premised on the same reasons tendered by the First Division, noting in addition
that the pro forma rule militates against his plea for reconsideration.
Thus, the instant petition for certiorari and prohibition.
Varias sought to nullify the
Comelec’s twin resolutions, faulting the poll body with grave abuse of
discretion on four grounds. The last two stated grounds, the ponencia
properly noted, are not open to certiorari review, involving as they do
the matter of appreciating and evaluating evidence that, in the proper context,
cannot result in any jurisdictional error inasmuch as Varias failed to allege
any grave abuse of discretion committed by the Comelec in arriving at its
conclusion. But to the majority, the first two grounds advanced by Varias are
so open for such review since he has shown how grave abuse of discretion was
committed under these grounds, namely: (1) That the Comelec decision did not
require the protestant to prove that the integrity of the ballots was
preserved; and (2) It relied on the physical count of the ballots in the 4 key
precincts 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.
A reasonable suspicion exists, so
Varias claims, that the integrity of the ballot boxes had been subverted and
that tampering of ballots had occurred. Accordingly, the Comelec should have
not relied on the ballots but on the results reflected in the election returns.
Thus, Varias concludes, 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.
Sharing Varias’ lament, the majority
held:
We agree with Varias’ contentions as our own
considerations 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
cited above.
This dissent revolves around the
question, following Rosal viewed in
conjunction with A.M. No. 07-4-15-SC, on whether or not the election returns
corresponding to certain precincts protested by Peñano truly reflect the will of the voters
therein, as expressed in the ballots they cast during the 2007 mayoralty
election in Alfonso,
Sec. 6. Disputable presumptions.—The following
presumptions are considered as facts, unless contradicted and overcome by other
evidence:
x x x x
(b) On
election paraphernalia:
(1)
Ballots and
election returns that bear the security markings and features prescribed by the
Commission on Elections are genuine; x x x
(c) On appreciation of ballots:
(1) A
ballot with appropriate security markings is valid; x x x
Complementing Sec. 6(c)(1) above is
the succeeding Rule 10 of the Rules reading:
Sec. 8. Inquiry as to security markings and vital information relative to ballots and election documents.—When a revision of ballots is ordered, and for the guidance of the revisors, the court shall inquire about the security markings on the ballots and election documents from the Chairman, Commission on Elections, who shall be obliged to indicate such markings and other vital information that may aid the court in determining the authenticity of ballots and election documents. The parties shall be notified of the results of such inquiry.
Rosal, citing Cailles v. Gomez,[9]
which, in turn, cited American jurisprudence, summarized the standards to be
observed in an election contest predicated on the theory that the election
returns – which are prima facie
evidence of how the electorate voted on election day[10] –
do not accurately reflect the true will of the voters due to alleged
irregularities in the appreciation and counting of ballots. These guiding
standards are:
(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 were actually cast and counted] 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.
In its decision, the RTC, in effect, held that
the protested ballots have not been fraudulently altered or tampered with after
the voting and physical count, irresistibly implying they remained in the same
condition as they were when delivered to the municipal treasurer as custodian
of the ballot boxes and their contents. The following pronouncements of the RTC
say or at least suggest as much:
The
ballots inside the ballot box for Precinct No. 87 echoes (sic) the allegations
[by Peñano of irregularities] in the election contest
and the testimony of Elvira (Salcedo) [11] further supports this claim.
x x x x
Indeed the ballots in this instance are not
the only mute instances 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 compared to the election return. Thus the physical
count of the ballots as made in the revision should be followed since the
election return for this precinct does not reflect the true choice of the
voters in this precinct.[12]
x x x x
The same circumstances as in Precinct 87A are
present in Precinct No. 90A/90B.[13]
x x x x
As the circumstances in [Precinct No. 92A]
are similar with those obtaining in Precinct 87A are present in Precinct No.
90A/90B …, the ballots should be regarded as reflective of the result of the
election.[14]
x x x x
Needless to state the court found the same
circumstances in this precinct [102A] and hence, the ballots should be followed
in determining the result of the election.[15]
The
Comelec’s First Division, in its 212-page resolution[16]
dismissing petitioner Varias’ appeal from the RTC’s decision, arrived at the
same critical factual conclusion on the absence of post-election tampering and,
accordingly, ruled that the trial court did not err in relying on the ballots
over the election returns. The First Division noted that item #3 of the Rosal
standard provides the answer to the question of “how is the integrity of the
ballots established.” Said item #3 provides that if a law sets out the mode of
preserving the ballots, proof must be made of such substantial compliance with
the requirements of that mode as would provide assurance of the ballots having
been kept inviolate, albeit there might have been slight deviations from the
exercise of achieving that end. The First Division listed and reproduced four
(4) provisions of the Omnibus Election Code[17]
and two (2) of Comelec Resolution No. 6667,[18]
all of which Rosal also referred to, prescribing for the safekeeping and
preservation of ballots. But as the First Division was quick to explain,
however, “[C]learly, the integrity of the ballots being referred to that has to
be proven by the protestant refers to the integrity of the ballot boxes that
contain the ballots in the place of storage, not the ballots per se.”[19] Rosal has a similar qualifying
explanation, formulated in the following wise:
Obviously, the proof [of the integrity of the ballots] cannot be supplied by an examination of the ballots themselves, their identity being the very fact of dispute.
x x x x
As made abundantly clear by the foregoing
provisions [of the Omnibus Code and Comelec Resolution No. 6667] the mode of
preserving the ballots in this jurisdiction is for these to be stored safely in
sealed and padlocked ballot boxes xxxx The integrity of the ballots and,
therefore, their probative value, as evidence of the voters’ will are contingent
on the integrity of the ballot boxes in which they were stored. x x x[20]
The
First Division, taking into account the following events and/or documents:
(1) the
Precautionary Order of the RTC dated May 28, 2007, directing the municipal
treasurer and election officer of Alfonso, Cavite to take proper measures
toward protecting the integrity of pertinent election documents/paraphernalia
vis-à-vis the protested precincts;
(2) the
RTC Order of June 12, 2007 – or after Varias had assumed office - for the
retrieval by the court sheriffs and delivery to the Court of the protested and
counter-protested ballot boxes with their keys;
(3) the
revision reports insofar as they
described the condition of the different ballot boxes at the time they were
opened for revision purposes; and
(4) the evidence adduced by the parties,
determined that “there was
substantial compliance with statutory safety measures to prevent reasonable
opportunity for tampering with their contents,”[21]
and thus the burden of proving that actual tampering with the contents of
the ballot boxes shifted to Varias.[22]
And as further determined by the
First Division, Varias failed to discharge the burden thus shifted to him, what
with the fact, among other things, that all the ballots in the 4 crucial
precincts were found by the Commission, using microscopic and ultra violet
light, to contain all the hidden security features.[23]
Under Sec. 6(c) of the Rules, a ballot with security markings is presumed
valid. Earlier, Varias raised the issue
of the ballots in question being spurious owing to their supposed lack of
security markings.
Upon
the foregoing perspective, I am disturbed and at a loss to understand how the ponencia could plausibly ascribe grave
abuse of discretion on the part of the First Division and the en banc Comelec. As the ponencia itself declares, the term
“grave abuse of discretion” denotes capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction; the abuse 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.
The ponencia takes the position that the Comelec—and necessarily the
RTC before it—looked at and used the wrong
or irrelevant considerations in resolving the case, an approach that thus
tainted with grave abuse of discretion its decision. And what were the
supposedly correct and relevant considerations that the Comelec did not bother
to take into account? The ponencia
summarized Varias’ enumeration of “correct” considerations that, according to
him and which the ponencia appears to
wholeheartedly agree with, the Comelec whimsically “refused to see and appreciate”.[24]
These are: (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; and (4) the different signatures at the back of
the ballot and incidents of superimpositions, as indicated in the NBI report.[25]
I
beg to disagree.
To
be sure, Comelec looked at and took into account what the ponencia viewed as the correct and relevant considerations, but the
stubborn fact is that the poll body found them insufficient to carry the day
for Varias. Refusal to look at and consider a certain
relevant matter when so required and inability to favorably consider such
matter, as was the Comelec’s bent in this case, are entirely two dissimilar
concepts. The difference need no belaboring. That the Comelec considered
Varias’ manifest concerns about the condition of the ballot boxes for the 4
precincts and the possibility that their security features have been
compromised before the revisions proceedings may be gleaned from the ensuing
excerpts of the First Division’s resolution:
In the Revision Report for Precinct 79A (Brgy. Mangas I), the ballot box is with Serial No. CEO1-056756. 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 77A/77B (Brgy. Mangas I), the ballot
box is with Serial No. CE01-058-033. 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 78A/78B (Brgy. Mangas I), the ballot box is with Serial No. CE-98-0469 16. It is reported to have three Comelec padlocks, with three keys. There is no outer metal seal but with two (2) inner metal seals with numbers 406139 and 406138 and they are found to have been properly attached and locked.
In the Revision Report for Precinct 86A/86B (Brgy. Marahan I), the ballot box is with Serial No. CE01-061579. It is reported that the ballot box is with three 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 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. Marahan 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 CE01-064817 and the inner metal seal is with serial number CE: 07406163. Both seals are properly attached.
In the Revision Report for Precinct No. 100A/100B (Brgy. Matagbak I), the ballot box is with serial number CE 95-39928 with two Comelec padlocks outside and one Comelec padlock inside. There are three keys accompanying the ballot box. The ballot box is found to be in good condition and that both outer and inner metal seals are properly attached and sealed.
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 (3) Comelec padlocks and three keys. There is no outer metal seals but with two (2) inner metal seals with serial numbers CE 0740674 and CE 0740673. 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 CE01-065438. It has three (3) padlocks and three (3) keys. The outer metal seal is with serial number CE 07-406166 and the inner seal is with CE 07-406165. The ballot box is in good condition and is properly locked.
In the Revision Report for Precinct No. 92A (Brgy. Marahan I), the ballot box is with Serial No. 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 serial numbers CE 007406167 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 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.”
And on the basis of the revision
reports duly signed by the parties’ respective revisors, the First Division
concluded:
In
the aforementioned 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
were 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.
It may so that the padlock for Precinct No.
102A had, per the revision report for that precinct, been forced open. There was a satisfactory explanation,
however, for this forcible opening: the padlock was cut by one Rommel Fernando
when it could not be opened by any of the three keys.
Varias—and impliedly the ponencia—has made much of the fact that
the First Division merely mentioned that the ballot boxes had padlocks with
corresponding keys but was completely silent on whether those keys could open
their intended padlocks. Varias is
obviously unaware of jurisprudence that
the mere inability of the keys to fit into the padlocks attached to the ballot
boxes would not, without more, vitiate the integrity of the ballots contained
therein. Writing for the Court in Carlos
v. Angeles, [26]
Associate Justice Bernardo Pardo, himself a former COMELEC Chairman,
ratiocinates as follows:
Procedurally, the keys to the ballot boxes [are] turned over by the Board of Election Inspectors from the precinct level to the Municipal Board of Canvassers and finally to the municipal treasurer for safekeeping. The three-level turn-over of the keys will not prevent the possibility of these keys being mixed up. This is an ordinary occurrence during elections. The mere inability of the keys to fit into the padlocks attached to the ballot boxes does not affect the integrity of the ballots. xxx. (Emphasis supplied.)
Lest it be overlooked, Varias, in his
appeal to the Comelec and his subsequent motion for reconsideration of the
Comelec First Division’s resolution, never touched any issue regarding padlocks, their keys and/or the serial
numbers of the metal seals used. Had he done so, Comelec could, with its technical
expertise and records of equipment used in the election, have had the
opportunity to address and rule on said issue.
There is even no mention that Varias questioned these matters during the
revision proceedings. As Varias only
raised the matter for the first time in the petition before the Court, the same
and his supporting arguments cannot be taken cognizance of and may be
disregarded as a non-issue.
The Comelec also passed upon the
NBI’s finding on superimposition, stating that the “fact that the name ‘Peñano’
is superimposed on the name ‘Varias’ does not conclusively prove the presence
of fraud.”[27] As to
the NBI’s findings respecting the signatures of the BEI chairmen at the back of
the ballots not being the same as the sample signatures of the same persons in
other election paraphernalia, the Comelec, citing the RTC decision, had also
addressed the same.
To my mind, the fault of the ponencia
lies in its near obsessive reliance on the NBI report. In this regard, it may
be well to recall what the Court said in Punzalan
v. COMELEC:[28]
The authenticity of a questioned signature cannot be determined solely upon its general characteristics, similarities or dissimilarities with the genuine signature. Dissimilarities as regards spontaneity, rhythm, presence of the pen, loops in the strokes, signs of stops, shades, etc., that may be found between the questioned signature and the genuine one are not decisive on the question of the former’s authenticity. The result of examination of questioned handwriting, even with the benefit of aid of experts and scientific instruments, is, at best, inconclusive. There are other factors that must be taken into consideration. The position of the writer, the condition of the surface on which the paper where the questioned signature is written is placed, his state of mind, feelings and nerves, and the kind of pen and/or paper used, played an important role on the general appearance of the signature. Unless, therefore, there is, in a given case, absolute absence, or manifest dearth, or direct or circumstantial competent evidence of the character of a questioned handwriting, much weight should not be given to characteristic similarities, or dissimilarities, between the questioned handwriting and an authentic one.
Indeed, the haste and pressure, the rush and excitement permeating the surroundings of polling places could certainly affect the handwriting of both the voters and the election officers manning the said precincts. The volume of work to be done and the numerous documents to be filled up and signed must likewise be considered. Verily, minor and insignificant variations in handwriting must be perceived as indicia of genuineness rather than of falsity.
In Go Fay v. Bank of
the Philippine Islands (46 Phil. 968 [1924]), this Court held that
carelessness, spontaneity, unpremeditation, and speed in signing are evidence
of genuineness. In
In sum, the said NBI report,
particularly on the genuineness of handwriting and other entries on the
ballots, is not conclusive to indicate ballot tampering. It is established doctrine in this
jurisdiction that opinions of handwriting experts are not binding on the court
or Comelec. Hence, it may accept totally
or in part or even dispense with the NBI findings and conclusions and conduct
its own examinations of the questioned handwriting.[29]
Expert testimony is generally
regarded, as correctly pointed out by the Solicitor General, to be purely
advisory in character and the courts or Comelec “may place whatever weight they
choose upon said testimony and reject it, if they find that it is inconsistent
with the facts in the case or otherwise, unreasonable.”[30]
Verily, the opinions of handwriting experts, while helpful in the examination
of forged documents owing to the technical procedure involved in the analysis,
are not binding on the courts.[31]
As a logical corollary, a finding of forgery does not depend entirely on the
testimonies of handwriting experts as the judge must conduct an independent
examination on the questioned signature or entry to arrive at a reasonable
conclusion as to its authenticity.[32]
In view of the foregoing, a becoming
respect for the bona fides of Comelec’s position on the NBI report
should have been the order of the day, absent any compelling reason why it
should be otherwise.
To me, it is incorrect to say that
the Comelec and the RTC deviated from Rosal,
more particularly on (a) the matter of preserving the integrity of the ballots,
(b) the question of who has the burden of proving the same and (c) the ensuing
shifting of the burden once the integrity of the ballot shall have been proven.
On the contrary, the Comelec’s action hewed with Rosal. In Rosal, the
Court quoted with approval the following doctrine that Cailles lifted from Tebbe v.
Smith:[33]
So, too, when a substantial compliance with
the provisions of the statute has been shown, the burden of proof shifts to the
contestant of establishing that, notwithstanding this compliance, the ballots
have in fact been tampered with, or that they have been exposed under such
circumstances that a violation of them might have taken place. But this proof
is not made by a naked showing that it was possible for one to have molested
them. The law cannot guard against a mere possibility and no judgment of any of
its courts is rendered upon one.
In the case at bar, there has been,
to the satisfaction of the RTC and
Comelec, substantial compliance with the law and Comelec rules as to the
manner of keeping the integrity of the ballots as would preclude a reasonable
opportunity of tampering with the ballot boxes’ contents. Upon proof of
compliance, the burden, following Rosal,
shifted to Varias to establish actual tampering or the likelihood thereof. As found by the RTC and the Comelec (First
Division and en banc), however, Varias was unable to satisfactorily
discharge this burden. He, instead, alleged that tampering likely occurred
because Peñano was still the sitting mayor when he filed his protest, the
padlocks in the four key precincts were forced open, and superimposition and
signature irregularity were contained in the NBI’s report.
The foregoing considered, it simply makes
little sense to argue that the Comelec and the RTC gravely abused their
discretion when they relied on the physical count of the ballots against the
entries appearing in the election returns for the 4 precincts in question. The determination of whether or not a ballot
is valid should be left exclusively to the trial court or electoral tribunal
taking cognizance of the election case on the basis of what appears on the face on the
ballots.[34] The
courts’ or Comelec’s discretion on the matter is circumscribed, however, by
this precept: extreme caution should be
observed before any ballot is invalidated and doubts in the appreciation of
ballots are resolved in favor of their validity.[35]
Lest it be overlooked, a meticulous
observance and examination of each and every contested ballot seem to have been
conducted by the RTC and Comelec before coming up with their own parallel
findings and conclusions. The First
Division devoted over 180 pages of its resolution to this examination process
alone, which may argue against the idea of that body acting on a whim or with
grave abuse of discretion.
As in any certiorari proceedings, the ultimate issue boils down to the
question of whether grave abuse of discretion attended the assailed action of a
government officer or office. Or put a bit differently, the question to be
asked is whether the action in question passes the test of reasonableness. In
1916, the landmark case of Lino-Luna v.
Arcenas[36] expounded on the juridical concept of
“discretion” as follows:
In its
very nature, the discretionary control conferred upon the trial judge over the
proceedings had before him implies the absence of any hard-and-fast rule by
which it is to be exercised, and in accordance with which it may be reviewed.
But the discretion conferred … is not a willful, arbitrary, capricious and
uncontrolled discretion. It is sound, judicial discretion which should always
be exercised …. As was said in the case of …: “The establishment of a clearly
defined rule of action would be the end of discretion, and yet discretion
should not be a word for arbitrary or inconsiderate action.” So in the case of
Goodwin vs. Prime (92
There being no “positive law or fixed rule”
to guide the judge in the court below in such cases, there is no “positive law or fixed rule” to guide a court
of appeal in reviewing his action …and such courts will not therefore attempt
to control the exercise of discretion by the court below unless it plainly
appears that there was “inconsiderate action” or the exercise of mere
“arbitrary will”, or in other words that his action in the premises amount to
an “abuse of discretion”. But the right of an appellate court to review
judicial acts which lie in the discretion of inferior courts may properly be
invoked upon a showing of a strong and clear case of abuse of power … or that
the ruling objected to rested on an erroneous principle of law not vested in
discretion.
To my mind, the Comelec’s action does not constitute what Lino-Luna would view as “a strong and clear case of abuse of power” or, in fine, come within the definition of grave abuse of discretion. For, the Comelec’s determination as to the compliance with the prescribed measures to safeguard the integrity of the ballots was not without valid substantiation. That the Comelec indeed made short shrift of Varias’ claim about the possibility of ballot tampering and his supporting arguments therefor is conceded. But the Comelec had its own plausible reasons for rejecting the claim. The ponencia itself admits that part (3 out of 5) of Comelec’s reasons may “arguably be reasonable.” Yet, the same ponencia would impute grave abuse of discretion on Comelec, reserving its strongest disapproval at the poll body’s purported trivial misappreciation of the NBI report on the handwriting and other entries on the ballot, as if such report concludes, by the operation of some fiction of law, the Comelec or the RTC.
The NBI report, according to the ponencia, forms part of a chain of facts/information which, when combined together, indicated the likelihood of ballot tampering. This argument may be accorded some cogency but for the fact that the Comelec and/or the RTC for its/their own stated reasons, did not find the NBI report a compelling evidence deserving the kind of weight Varias’ understandably wanted it to carry. In view of extant jurisprudence, grave abuse of discretion cannot be laid at the doorsteps of the COMELEC and/or the RTC for the evidentiary treatment they gave under the premises to the NBI report.
I can concede that the significant discrepancy between the results of the ballot count during revision and those reflected in the election returns for the 4 precincts cannot plausibly be explained by just looking at the number of required voters and the number of those who actually voted. The explanation lies somewhere else. It was captured in a sense by the RTC when it stated, in gist, that the revised ballots in the ballot boxes for the four precincts and the testimonies of Peñano’s witnesses echo the allegations of irregularities.[37] Properly appreciated, the revised ballots accounted for the significant addition to Peñano’s votes and the corresponding subtraction to Varias.
It has been suggested that the Comelec erred when its decision no longer required Peñano, as Rosal allegedly would, to prove that the integrity of the ballot boxes and their contents has been preserved in a mode as to preclude a reasonable opportunity of tampering with the ballots inside. But if Peñano, as protestant, had not been asked to discharge this burden, it ought to be pointed out, nevertheless, that the Comelec’s own investigation and the evidence adduced during the trial showed that the requirements for the care and preservation needed to safeguard the integrity of the ballot boxes—and necessarily of their contents - have substantially been complied with. To be sure, Rosal did not intend to impose on the protestant the obligation to prove a fact the trial court deemed already proven. The absurdity of a contrary view could have not been contemplated by Rosal. And as Rosal would also tell us, if it appears to the satisfaction of the trial court or Comelec that the ballots are intact and genuine, then it could adopt the result as shown by the ballot recount and not as reflected in the election returns.
If the Comelec thus took it upon
itself to look into and validate the matter of whether the ballots have been
molested, a capricious exercise of judgment cannot, for that act alone, be
imputed on the poll body. A lapse of judgment, perhaps, but not of grave abuse
of discretion as is equivalent to want of jurisdiction. For, in the final analysis, Comelec’s act was
no more than an attempt to determine the true voting will of the good people of
Alfonso,
The binding effect, even on this Court, of the factual determinations of the Comelec, exercising particular expertise in its field of endeavor, such as appreciation of ballots and evaluation of evidence on election irregularities, is firmly established. Hence, any attempt to overturn, on a petition for certiorari, factual determinations and conclusion of the Comelec would very well wreak havoc on well-settled jurisprudence. Yet, wittingly or unwittingly, this seems to be what the ponencia intends to accomplish in this case. This should not be allowed.
I, therefore, vote to deny the instant petition.
PRESBITERO J. VELASCO, JR.
Associate Justice
[1] Pangandaman v. COMELEC, 319 SCRA 287 (1999).
[2] Octava v. COMELEC, 518 SCRA 759, 765 (2007).
[3]De Guzman v. COMELEC, 426 SCRA 698 (2004); Aradais v. COMELEC, 428 SCRA 277 (2004).
[4] The alleged irregularities are as follows:
“Votes correctly and properly cast in favor of protestant were deliberately misappreciated and not credited to him by the corresponding board of election inspectors;
“Votes correctly and properly cast in favor or protestant were intentionally and unlawfully counted or tallied in the election returns as votes for the protestee;
“Valid votes correctly and properly cast in favor of protestant were intentionally were illegally and baselessly considered as stray;
“Ballots containing valid votes of the protestant were intentionally and/or illegally misappreciated or considered as marked and declared null and void;
“Votes cast in the name of protestee in the ballots in excess of the total number voters who actually voted were illegally considered, appreciated and credited in favor of the protestee;
“Votes cast in ballots prepared by persons other than those who actually voted were considered and appreciated and counted for protestee.” (See Rollo, p. 400)
[5] As narrated in the RTC Decision, Peñano presented the testimonies of four of his poll watchers; Varias presented the testimonies of his poll watchers in two precincts and the Board of Election Inspector chairperson for Precinct No. 92-A.
[7] March 16, 2007.
[9] 42 Phil. 496 (1921).
[10] Lerias v. HRET, 202 SCRA 808 (1991).
[11] Peñano’s poll watcher for Precinct No. 87A.
[12] Pages 34-35 of the RTC Decision; Rollo, pp. 400-401.
[13]
[14]
[15]
[16] Penned by Commissioner Rene Sarmiento.
[17] Secs. 160, 217, 219 & 220
[18] General Instructions for the Board of Election Inspectors on the Casting and Counting of Votes in Connection with the May 10, 2004 Synchronized National and Local Elections; a counterpart provision is found in Comelec Resolution No. 7815 - General Instructions for the Board of Election Inspectors on the Casting and Counting of Votes in Connection with the May 14, 2007 Synchronized National and Local Elections.
[19] Page 23 of the 1st Division resolution; Rollo, p. 85.
[20] Note No. 5, p. 498.
[21] Ibid, p. 27, rollo, p. 89.
[22] Ibid.
[23] Ibid, p. 91.
[24] Ponencia, p. 20.
[25] Ponencia, p. 19.
[26] Carlos v. Angeles, supra.
[27] Rollo, p. 92.
[29] Punzalan v. COMELEC, 289 SCRA 702; Section 22, Rule 132 of the Rules of Court explicitly authorizes the court (public respondent in this case) to make itself the comparison of the disputed handwriting “with writings admitted as genuine by the party whom the evidence is offered.”
[31]
Gimenez v. Commission on Ecumenical
[32] G.M. Philippines, Inc. v. Cuambot, G.R. No. 162308, November 22, 2006, 507 SCRA 552.
[33]
108
[34] Malaluan v. Comelec, 254 SCRA 397.
[35] De Guzman v. COMELEC, supra, citing cases.
[36] 34 Phil. 80 (1916).
[37] See Note No. 4, supra.
[38] Carlos v. Angeles, G.R. No. 142907, November 29, 2000; Gardiner v. Romulo, 26 Phil. 521 and other cases.