POST-ELECTION CASES

1.

CODILLA VS. DEVENECIA
G.R. No. 150605

Facts:
Codilla, then sitting as Mayor of Ormoc City, and Locsin, the incumbent Representative of the 4th
legislative district of Leyte, were candidates for the position of Representative of the 4th legislative
district of Leyte. A petition for disqualification was filed against Codilla for violating Sec. 68(a) of
the Omnibus Election Code, alleging that he used the equipment and vehicles owned by the City
Government of Ormoc to extract, haul and distribute gravel and sand to the residents of Kananga
and Matag-ob, Leyte, for the purpose of inducing, influencing or corrupting them to vote for him.

At the time of the elections on May 14, 2001, the disqualification case was still pending so
Codillas name remained in the list of candidates and was voted for. In fact, he garnered the
highest number of votes. However, his proclamation as winner was suspended by order of the
Comelec. After hearing of his disqualification case, he was found guilty and ordered disqualified.
Codillas votes being considered stray, Locsin was thus proclaimed as the duly elected
Representative and subsequently took her oath of office. Codilla then filed a timely Motion for
Reconsideration with the Comelec and also sought the annulment of Locsins proclamation.

Issues:
a. Whether or not Comelec has jurisdiction to annul the proclamation of a Representative?

b. Whether or not it is a ministerial duty of the House to recognize Codilla as the legally elected
Representative?

Ruling:
a. The validity of the respondents proclamation was a core issue in the Motion for
Reconsideration seasonably filed by the petitioner. xxx
Since the petitioner seasonably filed a Motion for Reconsideration of the Order of the Second
Division suspending his proclamation and disqualifying him, the COMELEC en banc was not
divested of its jurisdiction to review the validity of the said Order of the Second Division. The
said Order of the Second Division was yet unenforceable as it has not attained finality; the timely
filing of the motion for reconsideration suspends its execution. It cannot, thus, be used as the
basis for the assumption in office of the respondent as the duly elected Representative of the 4th
legislative district of Leyte.

b It is the House of Representatives Electoral Tribunal (HRET) which has no jurisdiction in the
instant case.

(a)The issue on the validity of the Resolution of the COMELEC Second Division has not
yet been resolved by the COMELEC en banc.
To stress again, at the time of the proclamation of respondent Locsin, the validity of the
Resolution of the COMELEC Second Division was seasonably challenged by the petitioner in his
Motion for Reconsideration. The issue was still within the exclusive jurisdiction of the COMELEC en
banc to resolve. Hence, the HRET cannot assume jurisdiction over the matter.
In Puzon vs. Cua, even the HRET ruled that the doctrinal ruling that once a proclamation has
been made and a candidate-elect has assumed office, it is this Tribunal that has jurisdiction over
an election contest involving members of the House of Representatives, could not have been
immediately applicable due to the issue regarding the validity of the very COMELEC
pronouncements themselves. This is because the HRET has no jurisdiction to review resolutions
or decisions of the COMELEC, whether issued by a division or en banc.

(b)The instant case does not involve the election and qualification of respondent
Locsin.
A petition for quo warranto may be filed only on the grounds of ineligibility and disloyalty to
the Republic of the Philippines. In the case at bar, neither the eligibility of the respondent Locsin
nor her loyalty to the Republic of the Philippines is in question. There is no issue that she was
qualified to run, and if she won, to assume office. A petition for quo warranto in the HRET is
directed against one who has been duly elected and proclaimed for having obtained the highest
number of votes but whose eligibility is in question at the time of such proclamation. It is evident
that respondent Locsin cannot be the subject of quo warranto proceeding in the HRET. She lost
the elections to the petitioner by a wide margin. Her proclamation was a patent nullity. Her
premature assumption to office as Representative of the 4th legislative district of Leyte was void
from the beginning. It is the height of absurdity for the respondent, as a loser, to tell petitioner
Codilla, Sr., the winner, to unseat her via a quo warranto proceeding.

Ministerial duty of the House to administer the oath of office of a winning but nevertheless
unproclaimed candidate Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person
may file a verified petition for mandamus when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting
from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a
right or office to which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law. For a petition for mandamus to prosper, it must be shown
that the subject of the petition for mandamus is a ministerial act or duty, and not purely
discretionary on the part of the board, officer or person, and that the petitioner has a well-
defined, clear and certain right to warrant the grant thereof.

The distinction between a ministerial and discretionary act is well delineated. A purely ministerial
act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his
own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon
a public officer and gives him the right to decide how or when the duty shall be performed, such
duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the
same requires neither the exercise of official discretion or judgment.

In the case at bar, the administration of oath and the registration of the petitioner in the Roll
of Members of the House of Representatives representing the 4th legislative district of Leyte is no
longer a matter of discretion on the part of the public respondents. The facts are settled and
beyond dispute: petitioner garnered 71,350 votes as against respondent Locsin who only got 53,
447 votes in the May 14, 2001 elections. The COMELEC Second Division initially ordered the
proclamation of respondent Locsin; on Motion for Reconsideration the COMELEC en banc set aside
the order of its Second Division and ordered the proclamation of the petitioner. The Decision of
the COMELEC en banc has not been challenged before this Court by respondent Locsin and said
Decision has become final and executory. In sum, the issue of who is the rightful Representative
of the 4th legislative district of Leyte has been finally settled by the COMELEC en banc, the
constitutional body with jurisdiction on the matter. The rule of law demands that its Decision
be obeyed by all officials of the land. There is no alternative to the rule of law except
the reign of chaos and confusion.




























PRE-ELECTION CASES

1.

NICOLAS C. CASTROMAYOR, PETITIONER, VS. COMMISSION ON ELECTIONS
G.R. No. 120426

Facts:
This is a petition for certiorari, prohibition, and mandamus seeking to set aside a resolution of the
Commission on Elections (COMELEC) which directs the Municipal Board of Canvassers of Calinog,
Iloilo to reconvene for the purpose of annulling the proclamation of petitioner Nicolas C.
Castromayor as councilor of that municipality and of proclaiming the winner after a recomputation
of the votes.Petitioner was a candidate for a seat in the eight-member Sangguniang Bayan of the
municipality of Calinog, Iloilo in the elections held on May 8, 1995. After the votes had been cast,
the Municipal Board of Canvassers (MBC) convened at 6:00 p.m. of that day and began the
canvass of the election returns from the different precincts in the municipality. The canvassing
lasted well into the night of May 9, 1995. The totals of the votes cast were checked by the
Municipal Accountant who acted as recorder of votes.

On May 10, 1995, the winners were proclaimed on the basis of the results of the canvass which
showed that petitioner received 5,419 votes and took eighth place in the election for members of
the Sangguniang Bayan. However, when Alice M. Garin, Chairman of the MBC, rechecked the
totals in the Statement of Votes the following day, she discovered that the number of votes cast
for Nilda C. Demorito, as member of the Sangguniang Bayan, was 62 more than that credited to
her. As Garin later explained to the Provincial Election Supervisor, the returns from one precinct
had been overlooked in the computation of the totals. Two employees of the Treasurers Office,
who were assigned to post the returns on the tally board outside the municipal building, also
discovered the error and reported it to Garin. As matters stood, therefore the total number of
votes cast for Demorito was 5,470, or 51 more than the 5,419 votes cast for petitioner. Garin
reported the matter to the Regional Election Director, Atty. Rodolfo Sarroza, who advised her to
request authority from the COMELEC to reconvene for the purpose of correcting the error.

On May 13, 1995, a fax letter was sent to the Law Department of the COMELEC in Manila. The
letter explained the problem and asked for authority for the MBC to reconvene in order to correct
the error, annul the proclamation of petitioner and proclaim Demorito as the eighth member of
the Sangguniang Bayan. A formal letter was later sent to the COMELEC on May 17, 1995. On May
23, 1995, the COMELEC issued the following resolution:

95-2414. In the matter of the Fax-letter dated 13 May 1995 from Election Officer Alice M. Carin
requesting for an authority to reconvene the MBC of Calinog, Iloilo to annul the proclamation of
Nicolas Castromayor for the No. 8 place for councilor and to proclaim Nilda C. Demorito as the
duly elected number eight SB member of said municipality,

RESOLVED:
To direct the Municipal board of Canvassers of said municipality to reconvene to annul the
proclamation of Nicolas C. Castromayor for the number 8 place for councilor; and
2 To proclaim the winning number eight councilor, and to submit compliance hereof within 5 days
from receipt of notice.
On May 25, 1995, not yet apprised of the resolution of the COMELEC en banc, Garin sent a letter
to petitioner Castromayor, informing him of the error in the computation of the totals and of the
request made by the MBC for permission to reconvene to correct the error. Petitioner protested
the proposed action in a letter dated June 5, 1995 to COMELEC Executive Director Resurreccion A.
Borra. He questioned the legality of the actuations of Garin as stated in her letter. On June 9,
1995, the MBC was informed by fax of the COMELECs action on its request.
Accordingly on June 14, 1995, the MBC sent notices to the parties concerned that it was going to
reconvene on June 22, 1995, at 10:00 a.m., at the Session Hall of the Sangguniang Bayan, to
make a correction of errors.

Issue:
Hence this petition to annul COMELEC Resolution No. 95-2414.

Ruling:
Petitioner complains that the COMELEC en banc issued the resolution in question without notice
and hearing, solely on the basis of the fax letter of the MBC. He claims that even if the matter
were treated as a preproclamation controversy, there would nonetheless be a need for hearing,
with notice to him and an opportunity to refute any contrary argument which might be presented.
He invokes the ruling of this Court in Bince, Jr. v. COMELEC that the COMELEC is without power
to partially or totally annul a proclamation suspend the effects of a proclamation without notice
and hearing.

Petitioners contention is well taken. That is why upon the filing of the petition in this case, we
issued a temporary restraining order against respondents enjoining them from enforcing the
resolution of the COMELEC. Public respondents, through the Solicitor General, now claim,
however, that said resolution merely stated the purpose of the reconvening of respondent Board,
and that the process and hearing for the annulment of petitioners proclamation, due to mistake in
computing the votes of Sangguniang Bayan candidate Nilda Demorito, will formally take place
when respondent Board reconvenes, at which time and place, petitioner was already informed of .

In the aforesaid reconvening, petitioner would have been free to interpose all his objections, and
discuss his position regarding the matter. To be sure, the COMELEC did not itself annul the
proclamation of petitioner, but, by directing the Municipal Board of Canvassers of said
municipality to reconvene to annul the proclamation of Nicolas C. Castromayor, the COMELEC in
effect did so. After all, the authority of the COMELEC was sought because, without such authority,
the MBC would not have the power to annul the proclamation of petitioner. Be that as it may and
in order to obviate the necessity of remanding this case to the COMELEC for further proceedings
in accordance with due process, we will accept this representation of the public respondents that
what the COMELEC resolution contemplates is a hearing before the MBC at which petitioner will be
heard on his objection and that only if warranted will the MBC be authorized to set aside the
proclamation of petitioner previously made on May 10, 1995. We find this to be the expedient
course of action to take, considering that, after all, in its notice to the candidates, the MBC did not
state that it was going to reconvene to annul petitioners proclamation and make a new one but
only that it was going to do so for the correction of the errors noted in the Statement of Votes
Per Precinct/Municipality.

The proceedings before the MBC should be summary. Should any party be dissatisfied with the
ruling of the MBC, the party concerned shall have a right to appeal to the COMELEC en banc, in
accordance with Rule 27, of the COMELEC Rules of Procedure, which provides as follows:
Correction of Errors in Tabulation or Tallying of Results by the Board of Canvassers. (a) Where
it is clearly shown before proclamation that manifest errors were committed in the tabulation or
tallying of election returns, or certificates of canvass, during the canvassing as where (1) a copy of
the election returns of one precinct or two or more copies of a certificate of canvass were
tabulated more than once, (2) two copies of the election returns or certificate of canvass were
tabulated separately, (3) there was a mistake in the adding or copying of the figures into the
certificate of canvass or into the statement of votes by precinct, or (4) so-called election returns
from non-existent precincts were included in the canvass, the board may motu propio, or upon
verified petition by any candidate, political party, organization or coalition of political parties, after
due notice and hearing, correct the errors committed.
(b) The order for correction must be made in writing and must be promulgated.
(c) Any candidate, political party, organization or coalition of political parties aggrieved by said
order may appeal therefrom to the Commission within 24 hours from the promulgation.
(d) Once an appeal is made, the board of canvassers shall not proclaim the winning candidates,
unless their votes are not affected by the appeal.
(e) The appeal must implead as respondents the Board of Canvassers concerned and all parties
who may be adversely affected thereby.
(f) Upon receipt of the appeal, the Clerk of Court concerned shall forthwith issue summons,
together with a copy of the appeal, to the respondents.
(g) The Clerk of Court concerned shall immediately set the appeal for hearing.
(h) The appeal shall be heard and decided by the Commission en banc.

Athough this provision applies to preproclamation controversies and here the proclamation of
petitioner has already been made, there is nothing to suggest that it cannot be applied to cases
like the one at bar, in which the validity of the proclamation is precisely in question. On the
contrary, in Duremdes v. COMELEC, this Court sustained the power of the COMELEC en banc to
order a correction of the Statement of Votes to make it conform to the election returns in
accordance with a procedure similar to the procedure now embodied in Rule 27, If the Rule was
not applied, it was only because it was adopted after that case had arisen. Otherwise, as we said
there, this procedure best recommends itself specially considering that the Statement of Votes is
a vital component in the electoral process. Indeed, since the Statement of Votes forms the basis
of the Certificate of Canvass and of the proclamation, any error in the statement ultimately affects
the validity of the proclamation. It begs the question, therefore, to say that this is not a
preproclamation controversy and the procedure for preproclamation controversies cannot be
applied to the correction in the computation of the totals in the Statement of Votes.

It should be pointed out, in this connection, that what is involved here is a simple problem of
arithmetic. The Statement of Votes is merely a tabulation per precinct of the votes obtained by
the candidates as reflected in the election returns. In making the correction in computation, the
MBC will be acting in an administrative capacity, under the control and supervision of the
COMELEC. Hence any question pertaining to the proceedings of the MBC may be raised directly to
the COMELEC en banc in the exercise of its constitutional function to decide questions affecting
elections.

What has just been said also disposes of petitioners other contention that because his
proclamation has already been made, any remedy of the losing party is an election protest. As
held in the Duremdes case: It is DUREMDES further submission that this proclamation could not
be declared null and void because a pre-proclamation controversy is not proper after a
proclamation has been made, the proper recourse being an election protest. This is on the
assumption, however, that there has been a valid proclamation. Where a proclamation is null and
void, the proclamation is no proclamation at all and the proclaimed candidates assumption of
office cannot deprive the COMELEC of the power to declare such nullity and annul the
proclamation.





















2.

BREN GUIAO VS. COMELEC
137 SCRA 366

Facts:
Petitioner Guiao was a candidate for Assemblyman in the May, 1984elections 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 beencompleted 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
inthe canvass of election returns from various voting centers of differentmunicipalities, on grounds
that the canvassed returns were incomplete; that here was duress, intimidation, falsification, and
the canvassed returns
wereobviously manufactured; that there were threats, coercion; and thatComelec'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 theObjections were raised after the completion of the canvass and
requesting
that the Provincial Board of Canvassers in Pampanga be authorized toproclaim the winning candid
ate 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'sobjections were later
dismissed by the Board of Canvassers for failure
tosubstantiate 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 Assembly man ABER CANLAS made by the
Provincial Board of Canvassers of Pampanga in connection with the May 14, 1984
electi on as hereby AFFIRMED and the appeal of the Peti ti oner-Appellant BREN GUIAO
accordingly DISMISSED.

Ruling:

Section 54 of Batas Pambansa No. 697 states that any candidate,political party coalition of political
parties, contesting the exclusion orinclusion in the canvass of any election returns shall submit
their same. The summary written objections to the Chairman of Canvassers. From the provision of
said Section54 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
duringthe actual canvassing of the election returns, that is, during the secondstage of the
proceedings as pointed above since it is only during this stage
that the board determines the inclusion or exclusion of the returns byopening and examining the r
eturns to verify the authenticity and genuineness of the
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.






3.

LAGUMBAY VS. COMELEC
G.R. No. L-25444

Facts:
This is a petition for revision of the order of the COMELEC refusing to reject returns of certain
precincts of some municipalities in Mindanao which were obviously manufactured. It appeared that all the 8
candidates of the Liberal party garnered all the votes, with each of them receiving exactly the
same number of votes while all the 8 candidates of the Nacionalista party getting zero.

Issue:
Whether the COMELEC was correct in not rejecting obviously manufactured election returns of
certain questioned precincts?

Rul i ng :
The Supreme Court ruled in the negative. There is no such thing as block voting now-a-days. The
election returns showing all 8 candidates of the Liberal party getting all the votes, with each one
of them getting the same number of votes while the 8 nacionalista candidates got zero are
evidently false or fabricated because of the inherent improbability of such a result. It is against
statistical improbabilities especially because at least 1 vote should have been received by the
Nacionalista candidates, i.e. the Nacionalista inspector. While it is possible that the inspector did
not like his partys senatorial live-up, it is not, however, possible that he disliked all of such
candidates and it is also not likely that he favored all the 8 candidates of the Liberal party. Hence,
most probably, he was made to sign an obviously false return by force or duress. If he
signed voluntarily, then he betrayed his party and any voting or counting of ballots was a fraud
and a mockery of the popular will. Rejecting such returns on the ground that they are manifestly
fabricated or falsified would constitute
a practical approach to the COMELECs mission to insure a free and honest elections.
















4.

SALLY LEE VS. COMELEC
G.R. No. 157004

Facts:
Sally A. Lee and Leovic R. Dioneda were candidates for mayor of Sorsogon City, Sorsogon in the
May 14, 2001 elections.
Dur i ng t he canvassi ng of t he el ect i on r et ur ns, counsel f or pr i vat erespondent
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 respondents 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
partylist, 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 petitioners proclamation. Pet i t i oner f i l ed her answer to the COMELEC petition, praying for
its dismissal. By Resolution of January 10, 2003, the COMELEC
SecondDivisiongranted the petition of private respondent and accordingly excluded the
questioned return from the canvass and nullified the proclamation of petitioner.

Issues:
1. WHETHER OR NOT PUBLIC RESPONDENT IS WITHOUT JURISDICTION TO GO BEYONDOR
BEHIND ELECTION RETURNS AND INVESTIGATE ELECTION IRREGULARITIES INPRE-
PROCLAMATION CONTROVERSY.

2. WHETHER OR NOT PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION WHENIT RENDERED THE
ASSAILED RESOLUTIONS DESPITE THE CLEAR AND APPARENTLACK OF FACTUAL AND LEGAL BASIS TO
SUPPORT THE SAME.

3. WHETHER OR NOT PUBLIC RESPONDENT COMMITTED PROCEDURAL LAPSES IN
THEPROMULGATION OF THE ASSAILED RESOLUTIONS WHICH AFFECTS THE FAIRNESSSTANDARD.

Ruling:
Petitioners 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
werecanvassed, t he r esul t s of whi ch mat er i al l y af f ect ed t he st andi ng of t heag
grieved 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 t he f i ndi ngs of t he COMELEC, t her e
i s no evi dence on r ecor d t hat 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 thumb marks
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
January10, 2003 Resolution of the COMELEC Second Division was promulgated without giving her
notice, and that were it not for her counsels "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 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-dayperiod 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
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 petitioners 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
thename of any candidate and/or his corresponding votes, the board of canvassers shall require th
e 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
beascertained 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
theballots 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 bypersons 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 authoritygiven 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 held: 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
defectsin 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 theintegrity 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.