BREN Z. GUIAO vs. COMELEC

137 SCRA 366

FACTS OF THE CASE

Petitioner Guiao was a candidate for Assemblyman in the May, 1984 elections in

Pampanga. At seven o'clock in the evening, the Provincial Board of Canvassers met at the

Conference Hall, Provincial Capitol in San Fernando, Pampanga, to canvass the election returns

from the voting centers in the province. By 11:30 o'clock in the evening of May 16, 1984, the

canvass of all election returns from all the voting centers of Pampanga had been completed

without any objection raised by anyone to any of the canvassed returns. Petitioner Guiao

garnered 5th place.

It was only after the canvass had been completed did Petitioner Guiao submit to the

Board of Canvassers his written objections to the inclusion in the canvass of election returns

from various voting centers of different municipalities, on grounds that the canvassed returns

were incomplete; that there was duress, intimidation, falsification, and the canvassed returns

were obviously manufactured; that there were threats, coercion; and that Comelec's copy was

not authentic, statistically improbable; and, that persons in Saudi Arabia were made to appear

as if they had voted.

Notwithstanding delay in the submission of these written objections, the Board of

Canvassers nevertheless held a hearing on the same day. The Chairman of the Board of

Canvassers, Atty. Manuel Lucero also sent to the Commission on Elections a memorandum,

stating and informing that the—

Objections were raised after the completion of the canvass and requesting that the Provincial

Board of Canvassers in Pampanga be authorized to proclaim the winning candidate based on

the results of the completed canvass without prejudice to the outcome of the hearing on the

objections.

In a resolution dated May 17, 1984, the COMELEC granted the request of the Chairman

of the Provincial Board of Canvassers. The petitioner's objections were later dismissed by the

Board of Canvassers for failure to substantiate the same. It also appears that at said hearing,

there was presented to the Board the request of the petitioner, thru his counsel Atty. Suarez,

that subpoena be issued to the members of the Citizens Election Committee from various

voting centers enumerated in the written objections. Said request was denied by the Board on

the grounds that said petitioner's counsel should have been ready with his evidence to support

his objections, the hearing being summary in nature and also to preclude further delay in the

proclamation of the winning candidates. Petitioner appealed the matter to the COMELEC.

Eventually, the COMELEC 1st Division resolved to sustain the proclamation of

Assemblyman ABER CANLAS made by the Provincial Board of Canvassers of Pampanga in

connection with the May 14, 1984 election as hereby AFFIRMED and the appeal of the

Petitioner-Appellant BREN GUIAO accordingly DISMISSED.

SUPREME COURT RULING

Section 54 of Batas Pambansa No. 697 states that any candidate, political party coalition

of political parties, contesting the exclusion or inclusion in the canvass of any election returns

shall submit their written objections to the Chairman of Canvassers. From the provision of said

Section 54 it can be inferred that these written objections must be submitted or manifested in

order that it can be reflected in the minutes of canvass during the actual canvassing of the

election returns, that is, during the second stage of the proceedings as pointed above since it is

only during this stage that the board determines the inclusion or exclusion of the returns by

opening and examining the returns to verify the authenticity and genuineness of the same.

The summary nature of the proceedings require that the written objections be filed only

during this stage because it is only during this stage of the canvass when the inclusion or

exclusion of any return is in issue and being passed upon by the board. If during this stage, after

the board has examined the returns and ruled to include them to the canvass with the

acquiescence or approval of the representatives of the political parties and without any

objection representatives of the political parties and without any objection written or verbal,

from any of the candidates or their representatives, they are included in the canvass and the

parties are estopped from questioning the inclusion of the returns in the canvass and from the

denying the admissibility of said returns in the canvass and from denying the admissibility of

said returns for purposes of the canvass after the second stage of the canvass.

This must be so since at the third stage of the canvass, the inclusion or exclusion of any

election return is no longer in issue. The issue in this third stage is the correctness or

incorrectness of the mathematical computation and tabulation of the total voters received by

the candidates as a result of the canvass.

Once the correctness of the mathematical computation of the result of the canvass

during this stage is determined and as established by the board of canvassers, the fourth stage

remains to be a formality which should not be delayed by frivolous, imaginary and untimely

unsubstantiated objections to election returns, intended to prevent or hinder the proclamation

of the winning candidates.

That these written objections must be submitted during the second stage, that is during

the actual canvassing of the election returns, becomes express when said Section 54 states

"The Board shall defer the canvass of the contested returns and shall not make any ruling

thereon until after all the uncontested election returns have been canvassed.

How can the board of canvassers defer the canvass of the contested returns if these

written objections are submitted after the second stage, that is after the canvassing of said

returns?

To allow these written objections to prosper after the canvassing would be requiring the

board of canvassers to reopen the canvass of election returns all over again which otherwise

was regularly conducted without any objection from the political party representatives and the

candidate or their representatives. This would not be in keeping with the summary nature of

the canvass proceedings.

ABDULAKARIM D. UTTO vs. COMELEC

G.R. No. 150111. January 13, 2002.

FACTS OF THE CASE

This petition for certiorari and prohibition seeks to annul the resolutions of the

Commission on Elections en banc, affirming in toto the resolution of the Comelec (First Division)

directing the inclusion of five (5) election returns excluded by the municipal board of canvassers

during the canvass of votes for the May 14, 2001 election in the municipality of Sultan sa

Barongis, Maguindanao and finding petitioner’s proclamation to be illegal and void ab initio.

Petitioner Abdulkarim D. Utto and respondent Datu Almansa B. Angas were candidates

for the position of the mayor of the municipality of Sultan sa Barongis, Maguindanao in the May

14, 2001 election.

For the canvassing of votes of the May 14, 2001 election returns, the original municipal

board of canvassers was composed of Nena Alid as chairman, and Maceda Lidasan Abo and

Noron Gonina, as members. During the canvassing on May 16, 2001, election returns in

Precinct Nos. 15A, 25A/26A, 66A, and 68A/69A were presented. On May 18, 2001, respondent

filed a petition to inhibit Alid and Abo, which resulted in the suspension of the canvassing. Alid

and Abo inhibited themselves from the proceedings.

On May 24, 2001, Bai Haidy D. Mamalinta took over as chairperson, with Roihaida Khalid

and Noron Gonina, as members of the municipal board of canvassers. The canvassing was

again suspended when both Khalid and Gonina also inhibited themselves from participating in

the proceedings.

On May 27, 2001, the provincial election supervisor designated Rufden Mangelen and

Tamano Diolanen as members of the municipal board of canvassers. In an affidavit executed on

May 31, 2001, Tamano Diolanen stated that at around 6:00 in the morning of that day,

chairperson Mamalinta called him up and informed him that she would convene the board of

canvassers, with instruction for him not to attend because he was already replaced. He further

stated that on May 28, 2001, Rufden Mangelen called him up to tell him of his (Mangelen)

decision to inhibit himself as member of the board of canvassers due to pressure exerted by

chairperson Mamalinta.

In the morning of May 31, 2001, the municipal board of canvassers convened with

chairperson Mamalinta and member Asuncion Corazon Reneido present. The other member,

Mowakiram Samuang was absent. Before the start of the canvass, chairperson Mamalinta

distributed to the parties present a report on the status of canvassing. Out of the 98 precincts,

the municipal board of canvassers issued four (4) separate rulings excluding the above-cited

five (5) election returns. Particularly, the municipal board of canvassers ruled that the Election

Returns were tampered with or were not original.

At this point, respondent orally manifested his intention to appeal the ruling, and

simultaneously filed a verified notice of appeal, which Bai Haidy D. Mamalinta (chairperson of

the municipal board of canvassers) refused to accept.

Meanwhile, despite respondent’s manifestation, the municipal board of canvassers

proceeded with the proclamation of the candidates for municipal offices. The board

proclaimed petitioner as the duly elected mayor of the municipality.

SUPREME COURT RULING

Section 38 (9), Comelec Resolution No. 3848[45] provided the procedure in the

disposition of contested election returns and certificate of canvass. The Comelec precludes the

board of canvassers from proclaiming any candidate as winner, except upon its authorization

after it has ruled on the appeal of the losing party. Any proclamation made in violation

thereof shall be void ab initio, unless the contested returns will not adversely affect the results

of the election. This provision is mandatory and requires strict observance.

Section 20 (i), Republic Act No. 7166 where Comelec Resolution No.3848 finds basis further

states:

“SEC. 20. Procedure in Disposition of Contested Election Returns.--(a) x x x

(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.”

Consequently, petitioner’s proclamation was null and void. It was made on May 31,

2001 after respondent manifested his intention to appeal the ruling of the board of canvassers.

On the day of the proclamation, respondent attempted to file a verified notice of appeal, but

the chairperson of the municipal board of canvassers refused to accept the appeal. Within the

reglementary period for filing an appeal, respondent went to the Comelec. Pursuant to Section

20 (i), Republic Act No. 7166, the municipal board of canvassers may not proclaim any

candidate without waiting for the authorization of the Comelec. Considering that petitioner

had a very small margin of 149 votes over respondent, and there were 944 registered voters

from the five excluded election returns, the results of the municipal election would be

undoubtedly adversely affected by the contested returns. The proclamation thus made is void

ab initio.

It is now settled that an incomplete canvass of votes is illegal and cannot be the basis of

a proclamation. A canvass cannot be reflective of the true vote of the electorate unless all

returns are considered and none is omitted. When the municipal board of canvassers

disregarded the five (5) election returns, it in effect disenfranchised the voters of the excluded

precincts.

Thus, the Comelec did not abuse its discretion for convening a new board of canvassers

and directing the inclusion of the uncanvassed election returns and, thereafter proclaiming the

winning candidate for mayor and other municipal officials.

Time and again, the Court has given its imprimatur on the principle that Comelec is with

authority to annul any canvass and proclamation illegally made. The fact that a candidate

illegally proclaimed has assumed office is not a bar to the exercise of such power. It is also true

that after proclamation, the remedy of a party aggrieved in an election is an election protest.

This is on the assumption, however, that there has been a valid proclamation. Where a

proclamation is null and void, the proclaimed candidate’s assumption of office cannot deprive

Comelec of the power to declare such proclamation a nullity.

The reason behind the view herein expressed is as aptly elucidated in Aguam, to wit:

“We draw from past experience. A pattern of conduct observed in past elections has been the

‘pernicious grab-the-proclamation-prolong-the-protest-slogan’ of some candidates or parties.’

Really, were a victim of a proclamation to be precluded from challenging the validity thereof

after that proclamation and the assumption of office thereunder, baneful effects may easily

supervene. It may not be out of place to state that in the long history of election contests in

this country, as observed in Lagumbay vs. Climaco, a successful contestant in an election

protest often wins but ‘a mere pyrrhic victory, i. e., a vindication when the term of office is

about to expire or has expired.’ Protests, counter-protests, revisions of ballots, appeals, dilatory

tactics, may well frustrate the will of the electorate. And what if the protestant may not have

the resources and an unwavering determination with which to sustain a long drawn-out

election contest? In this context therefore all efforts should be strained - as far as is humanly

possible - to take election returns out of the reach of the unscrupulous; and to prevent illegal

or fraudulent proclamation from ripening into illegal assumption of office.”

SALLY A. LEE vs. COMELEC

G.R. No. 157004. JULY 4, 2003.

FACTS OF THE CASE

Sally A. Lee (petitioner) and Leovic R. Dioneda (private respondent) were candidates for

mayor of Sorsogon City, Sorsogon in the May 14, 2001 elections.

During the canvassing of the election returns, counsel for private respondent objected

to the inclusion of Election Return No. 41150266 for Precinct No. 28A2 in barangay

Bucalbucalan, Sorsogon City on the grounds that 1) no entries were made for the position of

congressman, and 2) Laban ng Demokratikong Pilipino (LDP) watchers were utilized to fill up

election returns.

In her opposition to private respondent’s objection, petitioner alleged that 1) the

omitted entry in the election return pertains to the position of congressman which cannot be a

subject of pre-proclamation controversy, 2) the utilization of the watchers, who were under the

direct supervision of the Board of Election Inspectors (BEI), was limited only to the filling up of

the entries affecting the party-list and justified by the severe lack of personnel to perform the

task, and 3) the alleged defect does not affect the integrity of the election return.

On May 18, 2001, the Board of Canvassers (BOC), finding that the 1) questioned election

return was clear and regular on its face, 2) there was no pre-proclamation for members of the

House of Representatives and party list, and 3) the grounds relied upon by private respondent

are all directed against the proceedings of the BEI and not the BOC, ruled for the inclusion of

the return. Private respondent thereupon filed on the same day a notice of appeal of the BOC

ruling.

In the meantime, or on May 19, 2001, the BOC proclaimed the winning candidates,

including petitioner as city mayor.

Private respondent thus filed on May 23, 2001 before the COMELEC a petition assailing

the ruling of the BOC and praying for the exclusion of the questioned election return and the

annulment of petitioner’s proclamation.

Petitioner filed her answer to the COMELEC petition, praying for its dismissal. By

Resolution of January 10, 2003, the COMELEC Second Division granted the petition of private

respondent and accordingly excluded the questioned return from the canvass and nullified the

proclamation of petitioner.

ISSUES

I.

WHETHER OR NOT PUBLIC RESPONDENT IS WITHOUT JURISDICTION TO GO BEYOND OR BEHIND ELECTION RETURNS AND INVESTIGATE ELECTION IRREGULARITIES IN PRE-PROCLAMATION

CONTROVERSY.

II.

WHETHER OR NOT PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION WHEN IT RENDERED THE ASSAILED RESOLUTIONS DESPITE THE CLEAR AND APPARENT LACK OF FACTUAL AND LEGAL BASIS TO

SUPPORT THE SAME.

III.

WHETHER OR NOT PUBLIC RESPONDENT COMMITTED PROCEDURAL LAPSES IN THE PROMULGATION OF THE ASSAILED RESOLUTIONS WHICH AFFECTS THE FAIRNESS STANDARD.

SUPREME COURT RULING

Petitioner’s argument is bereft of merit.

Section 243 of the Omnibus Election Code provides:

Section 243. Issues that may be raised in a pre-proclamation controversy. - The following shall

be proper issues that may be raised in a pre-proclamation controversy:

(a) Illegal composition or proceeding of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be

tampered with or falsified, or contain discrepancies in the same returns or in other authentic

copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code;

(c )The election returns were prepared under duress, threats, coercion, or intimidation, or they

are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were canvassed, the

results of which materially affected the standing of the aggrieved candidate or candidates.

The doctrine cited by petitioner presupposes that the returns "appear to be authentic

and duly accomplished on their face." Where, as in the case at bar, there is a prima facie

showing that the return is not genuine, several entries having been omitted in the questioned

election return, the doctrine does not apply. The COMELEC is thus not powerless to determine

if there is basis for the exclusion of the questioned election return.

As to the second error raised by petitioner, she claims that contrary to the findings of

the COMELEC, there is no evidence on record that an LDP watcher participated in the

preparation of the questioned election return. She posits that the omission of entries was not

done with malice or bad faith nor meant to subvert the true will of the people, and that the

election return in question is clear and regular on its face, duly authenticated by the signatures

and thumbmarks of the six watchers and all the members of the BEI. Finally, she posits that an

incomplete election return is not necessarily spurious, manufactured or fraudulent to

necessitate its exclusion.

As to the third error raised by petitioner, she argues that the January 10, 2003

Resolution of the COMELEC Second Division was promulgated without giving her notice, and

that were it not for her counsel’s "accidental" visit to the COMELEC on January 13, 2003, said

counsel would not have known that said resolution was already promulgated and the 5-day

period from the date of promulgation to file a motion for reconsideration, as provided under

the following provision of Rule 19 of the 1993 COMELEC Rules of Procedure, would have lapsed:

Section 2. Period for Filing Motions for Reconsideration. - A motion to reconsider a decision,

resolution, order or ruling of a Division shall be filed within five (5) days from the promulgation

thereof. Such motion, if not pro-forma, suspend the execution or implementation of the

decision, resolution, order and ruling.

In Lindo v. Commission on Elections, this Court held that the 5-day period for the filing

of an appeal commences from the date of receipt of copy of the decision. As correctly ruled by

the COMELEC:

The petitioner misinterpreted the provision of Section 2, Rule 19 of the 1993 Comelec Rules of

Procedure when she stated that "Unlike other cases, the reglamentary period within which a

party can have the decision or resolution reviewed on motion for reconsideration runs from the

date of promulgation." When not promulgated in open hearing, a simple procedural sense

would dictate that the period to file a Motion for Reconsideration must have to be tolled from

the date of receipt of the decision/resolution involved.

Further, the doctrine laid down in the case of Lindo v. Comelec (194 SCRA 25) would

have supported the proposition that the additional requirement imposed by the COMELEC

Rules on advance notice of promulgation does not form part of the process of promulgation

and that the failure to serve such notice in advance did not prejudice the rights of the parties

and did not vitiate the validity of the decision nor of the promulgation, as the period for the

unsatisfied party to move for reconsideration can be exercised - not from the date of

promulgation, as misconstrued by petitioner, but from her actual receipt of a copy of the

resolution in question.

As to the non-indication of the ponente of the COMELEC En Banc Resolution, petitioner

merely proffers a possibility of violation of the COMELEC Rules. It is presumed, however, that

an official duty has been regularly performed.

The lack of merit of petitioner’s arguments notwithstanding, the COMELEC, in ordering

the exclusion of the questioned return, should have determined the integrity of the ballot box,

the ballot-contents of which were tallied and reflected in the return, and if it was intact, it

should have ordered its opening for a recounting of the ballots if their integrity was similarly

intact. So instructs Section 234 of the Omnibus Election Code which reads:

Section 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 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.

And so does Section 235 of the same Code which provides:

Section 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 under duress, force,

intimidation, or prepared by persons other than the members of the board of election

inspectors, the board of canvassers shall use 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 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 the integrity 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. Thus, this Court in Patoray v.

Commission on Elections[25] held:

x x x

As to the election return for Precinct No. 20-A, we ruled that the COMELEC erred in resorting to

the Certificate of Votes in excluding the return in said precinct. Since the return was incomplete

for it lacked the data as to provincial and congressional candidates, the applicable provision

would be Section 234 of the Omnibus Election Code which deals with material defects in

election returns. Thus, we ruled that the COMELEC should have first determined the integrity of

the ballot box, ordered the opening thereof and recounted the ballots therein after satisfying

itself that the integrity of the ballots is intact. We then directed the COMELEC to issue another

Order in accordance with said Decision.

x x x

If the integrity of the ballot box had been violated, then there would be no need to open

it. If not, and upon opening it there is evidence that the integrity of the ballots had been

violated, there would be no recounting thereof, and the COMELEC would then seal the box and

order its safekeeping. Thus Section 237 of the Omnibus Election Code provides:

Sec. 237. When integrity of ballots is violated. - If upon the opening of the ballot box as

ordered by the Commission under Sections 234, 235 and 236, hereof, it should appear that

there are evidence or signs of replacement, tampering or violation of the integrity of the

ballots, the Commission shall not recount the ballots but shall forthwith seal the ballot box and

order its safekeeping.

WHEREFORE, the COMELEC is, in accordance with the foregoing discussion, hereby

DIRECTED to determine within twenty days whether the integrity of the ballot box, the ballot-

contents of which were tallied and reflected in the questioned return, is intact and, if in the

affirmative and the integrity of the ballots is likewise intact, to order the Sorsogon City Board of

Election Inspectors to recount the votes cast in Precinct No. 28A2 in Barangay Bucalbucalan,

Sorsogon City and prepare a new return to serve as basis of canvass by said board; otherwise

the ballot box should no longer be opened or the ballots should no longer be recounted as the

case may be, in which case an order for the safekeeping of the ballot box should be issued. The

Status Quo Ante Order issued on February 18, 2003 is hereby DISSOLVED.