G.R. No. L-13744 November 29, 1918
JOSE LINO LUNA, vs.EULOGIO RODRIGUEZ, SERVANDO DE LOS ANGELES
It appears from the record that an election for the office of governor of the Province of Rizal was
held on the 6th day of June, 1916. At said election Jose Lino Luna, Eulogio Rodriguez and
Servando de los Angeles were candidates for said office. The election was closed, the votes cast in
the various municipalities were counted, and a return was made by the inspectors of said
municipalities to the provincial board of canvassers, who, after a canvass of said returns, proclaimed
the following result:
(a) That Eulogio Rodriguez received 4,321 votes; (b) Jose Lino Luna 4,157; (c) Servando de los
Angeles 3,576 votes; and (d) that Eulogio Rodriguez, having received a plurality of said votes, was
duly elected governor of said province.
Against said proclamation Jose Lino Luna presented a protest in the Court of First Instance. Upon
said protest issue was joined, hearing was had and a decision was rendered which was, on appeal,
set aside and a new trial ordered. (Lino Luna vs. Rodriguez and De los Angeles, 37 Phil. Rep., 186.)
Complying with said order, a new trial was had at which the Honorable William E. McMahon,
judge, presided. Additional evidence was adduced. After a consideration of all of the facts and the
evidence adduced at both trials, Judge McMahon reached the conclusion that the ballots cast for the
various candidates were as indicated in the returns of the inspectors of the various municipalities
except those in the municipality of Taytay and Binangonan. In the municipality of Taytay, Judge
McMahon found from the evidence that 50 ballots cast for Eulogio Rodriguez should not have
been counted for him, and ordered that number of votes deducted from his total. In the
municipality of Binangonan, Judge McMahon found that the inspectors did not close the polls at 6
o'clock p.m., and that a large number of persons voted after that time, and directed that the total vote
of Eulogio Rodriguez should be reduced by the number of such votes, without ascertaining how
many had been cast for Rodriguez and how many for Luna. By deducting the said votes in the
municipality of Taytay and those cast after six o'clock p.m. in the municipality of Binangonan,
Judge McMahon concluded that Jose Lino Luna had received a plurality of the legal votes cast at
said election and ordered the provincial board of canvassers to correct its canvass accordingly. From
that conclusion both parties to the contest appealed to this court and made several assignments of
error.
Considering all of said assignments of error, we find that they present, in fact, but three questions:
(1) What is the effect of holding the polls open after the hour fixed for closing the election?
(2) What is the effect of assistance rendered by the inspectors of the election to incapacitated
persons, without first requiring of such persons an oath to the effect that they are incapacitated to
prepare their own ballots?
(3) What is the effect of a failure on the part of the authorities to provide proper voting booths?
With reference to the first question, the law provides that "at all the elections held under the
provisions of this Act the polls shall be open from seven o'clock in the morning until six o'clock in
the afternoon, during which period not more than one member of the board of inspectors shall be
absent at one time, and then for not to exceed twenty minutes at one time." (Sec. 21 of Act No.
1582; sec. 11 of Act No. 2045; sec. 543 of Act No. 2657, and sec. 445 of Act No. 2711.) Are the
provisions with reference to the time of opening and closing the polls mandatory? It is admitted in
the present case that the polls were not closed at 6 p.m. The record shows that at 6 p.m. a large
number of voters had not yet been able to vote and that, for that reason, an agreement was made
between some of the candidates for office who were present and the board of inspectors, to the
effect that the polls should be kept open in order that such electors might vote. No objection
whatever to that agreement was made by any person at that time.
One of the reasons why all of the voters of the municipality had not voted before 6 p.m. was that the
board of inspectors failed to have the list of voters properly prepared at 7 a.m., and therefore but
few of the voters were able to vote before eleven or eleven-thirty in the morning. That failure, on
the part of the board of inspectors, made it impossible for many of the voters of the municipality of
Binangonan to vote before the regular time for the closing of the polls.
Shall the ballot of an innocent voter, who is prevented, through no fault of his, from casting the
same before 6 p.m. be annulled for the simple reason that the polls were kept open, after the hour
designated by the law, for the purpose of giving such voter an opportunity to vote?
Experience and observation has taught legislatures and courts that, at the time of a hotly contested
election, the partisan spirit of ingenious and unscrupulous politicians will lead them beyond the
limits of honesty and decency and by the use of bribery, fraud and intimidation, despoil the purity of
the ballot and defeat the will of the people at the polls. Such experience has led the legislatures to
adopt very stringent rules for the purpose of protecting the voter in the manner of preparing and
casting his ballot to guard the purity of elections. (Paulino vs. Cailles, 37 Phil. Rep., 825.)
The infinite ingenuity of violent partisan spirit in evading the rules and regulation of elections and
the use of bribery, fraud and intimidation has made necessary the establishment of elaborate and
rigid rules and regulations for the conduct of elections. The very elaborateness of these rules has
resulted in their frequent violation and the reports of the courts are replete with cases in which the
result of an election has been attacked on the ground that some provision of the law has not been
complied with. Presumably, all the provisions of the election laws have a purpose and should
therefore be observed. (Detroit vs. Rush, 82 Mich., 532; 10 L. R. A., 171; 9 R. C. L., 1091; Patton
vs. Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72.)
It has been announced in many decisions that the rules and regulations, for the conduct of elections,
are mandatory before the election, but when it is sought to enforce them after the election they are
held to be directory only, if that is possible, especially where, if they are held to be mandatory,
innocent voters will be deprived of their votes without any fault on their part. (Patton vs. Watkins,
131 Ala., 387; 90 Am. State Rep., 43, 72; Jones vs. State, 153 Ind., 440.)
With reference to the second question above presented, the law provides that:
A voter otherwise qualified who declares that he can not write, or that from blindness or other
physical disability he is unable to prepare his ballot, may make an oath to the effect that he is so
disabled and the nature of his disability and that he desires the inspectors to assist him in the
preparation of such ballot. The board shall keep a record of all such oaths taken and file the same
with the municipal secretary with the other records of the board after the election. Two of the
inspectors, each of whom shall belong to a different political party, shall ascertain the wishes of the
voter, and one of them shall prepare the ballot of the voter in proper form according to his wishes,
in the presence of the other inspector, and out of view of any other person. The information this
obtained shall be regarded as a privileged communication. (Section 12, Act No. 2045; section 550,
Act No. 2657; section 453, Act No. 2711.)
Said quoted section provides the method by which a person who cannot prepare his ballot may be
assisted. The conditions are:
(a) That he must make an oath to the effect that he is disabled and the nature of his disability
together with the fact that he desires the inspectors to assist him in the preparation of his ballot;
(b) That a record of said oath shall be filed with the municipal secretary with the other records of
the board of inspectors after the election; and
(c) When said oath is taken, then two of the inspectors, each of whom shall belong to different
political party, may assist him in the preparation of his ballot.
In view of said conditions, what shall be the effect of a failure to comply therewith? Suppose, for
example, that the voter is incapacitated; that the board of inspectors are fully aware of that fact; that
they failed to require of him the oath; that they failed to keep on file the oath taken, or that one
inspector only assisted said voter in the preparation of his ballot, or that two assisted him which
belonged to the same party, shall the ballot of such an incapacitated person be rejected? Shall all of
the votes of the precinct be nullified because of the failure of the inspectors to comply strictly with
the letter of the law?
We held in the case of Paulino vs. Cailles (R. G. No. 12753, 37 Phil. Rep., 825) that the ballots of
incapacitated persons who voted without taking the oath or were assisted by one inspector alone, or
by two belonging to the same party, should not be counted if such ballots could be identified. We
further held that, in the absence of fraud, all of the ballots of the precinct should not be invalidated
by the mere fact that the inspectors did not comply with their duty. Innocent voters should not be
deprived of their participation in an election for a violation of the law for which they were in no
way responsible and which they could not prevent.
The incapacitated persons mentioned in said section above noted are usually persons who are unable
to acquaint themselves with the provisions of the law. They are, therefore, absolutely dependent
upon the advice and counsel of others. Generally, they have no idea whatever as to the form and
requirements in casting their ballots. Their ignorance, however, does not relieve them from their
responsibility under the law, nor from the effect of their failure to comply therewith. (Manalo vs.
Sevilla, 24 Phil. Rep., 609; Gardiner vs. De Leon, R. G. No. 12382 decided March 15, 1917, not
published; Paulino vs. Cailles, R. G. No. 12763, 37 Phil. Rep., 825.)
The law intended that those votes only who are incapacitated in some way should be assisted. To
insure a compliance with the law an oath of incapacity is required. To prove that only such persons
have received assistance, the election board is required to keep a record of such oath. To guarantee
that such voters should not be imposed upon, the law wisely provided that two inspectors of
different political faith should assist them. Upon the other hand, if the inspectors have failed or
declined to perform a duty or obligation imposed upon them by the Election Law, they may be
punished.
The record shows that in many of the municipalities of the Province of Rizal, during the election in
question, a great many incapacitated persons voted without taking the oath required and were
assisted by one inspector only in the preparation of their ballots. But, in view of the fact that such
ballots have not been identified they cannot be rejected. The voter cannot be punished. The remedy
is by a criminal action against the inspectors for a failure to comply with the law. (Section 29, Act
No. 1582; section 2632, Act No. 2657; section 2639, Act No. 2711.)
Said section (2632) provides, among other things, that any member of a board of registration, or
board of inspectors, or board of canvassers who willfully declines or fails to perform any duty or
obligation imposed by the Election Law, shall be punished by imprisonment for not less than one
month nor more than one year, or by a fine of not less than P200 nor more than P500 or both.
With reference to the third question above indicated, relating to what is the effect of a failure on the
part of the authorities to provide proper voting booths, it may be said that we have held in the case
of Gardiner vs. Romulo (26 Phil. Rep., 521) that the requirements of the Election Law providing for
the location of polling stations and the construction of booths and guard rails for the latter may be
departed from in some particulars and yet preserve, in substantial form, the secrecy which the law
requires. But the failure to provide doors and guard rails for the booths and the placing of the
writing shelf so that it faces the side instead of the rear of the booths are, combined, a fatal disregard
of the law, inasmuch as such an arrangement does not offer, even in substantial form, the secrecy
and seclusion which, according to the purpose and spirit of the Election Law, is its most
mandatory requirement.
Section 9 of Act No. 1582, as amended by section 512 of Act No. 2657 and section 415 of Act
2711, provides that there shall be in each polling place, during each election, a sufficient number of
voting booths, not less than one for every fifty voters, in the election precinct. Said section further
provides how such voting booths, not less than one every fifty voters, in the election precinct. Said
section further provides how such voting booths shall be constructed. The purpose of said
provisions is to furnish each voter an opportunity to prepare his ballot in secrecy. Suppose the board
of inspectors does not prepare the voting booth in exactly the form prescribed by law, what shall be
the effect? Support, the example, that they construct a booth less than one meter square as is
provided by the law but yet sufficiently large to enable the voter to enter and to prepare his ballot in
secrecy; or suppose that the door swinging outward to the booth shall extend to the floor instead of
within fifty centimeters of the floor; or suppose that the shelf upon which the voter shall prepare his
ballot shall be less than thirty centimeters wide, shall the entire election be declared null and void
for such failures when it is admitted and proved, beyond question, that even with such defects in the
fulfillment of the requirements of the election law they were in fact constructed in a manner which
provided the voter a complete opportunity to prepare his ballot in absolute secrecy? While there is
no provision in the law, relating to the construction of booths, they shall be constructed in such
manner as to afford the voter an opportunity to prepare his ballot in secret, that must be the primary
and ultimate object of having the booths constructed in the manner indicated 53VVB.
When we held that the law requiring the preparation of the booths in a particular manner was
mandatory, we did not mean to hold that unless they were prepared in exact conformity with the
law, that the election would be nullified. We simply held that if they were not constructed in a
manner which afforded the voters an opportunity to prepare their ballots in secret, the election
would be declared null and void on that account. If, however, upon the other hand, the booths were
so constructed, even though not in strict accord with the provisions of the law, as to afford each
voter an opportunity to prepare his ballot in secret, the election should not be declared null and void.
Secrecy is the object of the booth. An opportunity to prepare his ballot in private is the purpose of
the provision. When the booth affords that protection, the purpose of the law is fulfilled. To hold
otherwise — to establish a different rule — would make the manner of performing a public duty
more important than the performance of the duty itself xwEh39.
In the present case, while there is some conflict in the evidence, and while the proof clearly shows
that the booths were not constructed in strict accordance with the provisions of the law, we are of
the opinion that a large preponderance of the evidence shows that the booths were constructed
(defectively perhaps) in a manner which afforded each voter an opportunity to prepare his ballot in
absolute secrecy. That being true, we find no reason for changing or modifying the conclusion of
the lower court.
The defendant-appellant alleges, and attempts to establish the fact, that in the municipality of San
Felipe Nery many irregularities were committed which should invalidate the election. For example,
he alleges the different columns of the polling list were not properly filled. Even granting that fact,
the voter was in no way responsible. The voter not being responsible, his ballot should not be
nullified on that account. Filling the different columns of the polling list is a duty imposed upon the
election officers. If they fail to perform their duty they are responsible; and as we have frequently
said, the ballots of innocent voters should not be nullified for a failure on the part of election
officers to perform their duty in accordance with the provisions of the law. The remedy is a criminal
action against the inspectors if they have violated the law and not to nullify the votes of innocent
voters.
The defendant-appellant further alleges that in the municipality of San Felipe Nery, a number of
voters voted who were not residents of said municipality. That question was presented to the court
below, and upon a full consideration he refused to nullify the election in said municipality upon the
grounds alleged. While it is true that the proof shows that some grave irregularities were committed
by the board of inspectors, we are not persuaded that the evidence is sufficient to justify this court in
nullifying the entire vote of said municipality. In view of that conclusion, we deem it unnecessary to
discuss the other allegations of the defendant-appellant with reference to the striking out of certain
allegations in his answer EX9871.
The lower court, after hearing the evidence and after examining the ballots cast in the municipality
of Taytay, found that 50 ballots which had been counted for the defendant-appellant should not be
counted for him and ordered that the total vote of the defendant-appellant should be reduced by that
number. The defendant-appellant in fact admits that the said 50 votes should be deducted from his
total vote. In view of that admission of the defendant-appellant, we deem it unnecessary to discuss
the reasons therefor.
Upon the various errors assigned, our conclusions are:
(1) That the total votes cast in the municipality of Binangonan should be counted for the respective
candidates; that for the special reason given, the board of inspectors was justified in keeping the
polls open after the hour for closing. But this conclusion must not be interpreted to mean that under
other circumstances and other conditions, where the polls are kept open after the hour for fraudulent
purposes, that such act on the part of the inspectors might not nullify the entire election (Gardiner
vs. Romulo, 26 Phil. Rep., 521);
(2) That while it is irregular for the board of inspectors to permit incapacitated voters to vote
without taking the oath and for one inspector only to assist such voters, yet the ballots of the
innocent voters should not be nullified on that account; that the ballots of such persons only should
be annulled when identified;
(3) That inasmuch as the voting booths in the municipality of Antipolo were prepared in a manner
and form which permitted the voter to prepare his ballot in absolute secrecy, the vote of that
municipality should not be nullified; and
(4) That the judgment of the lower court reducing the total vote of the defendant-appellant by fifty
identified fraudulent ballots counted for him, in the municipality of Taytay, should be affirmed.
As a result of the count of the ballots, cast in the various municipalities by the provincial board of
inspectors, Eulogio Rodriguez received 4,321 votes, Jose Lino Luna received 4,157 votes and
Servando de los Angeles received 3,576 votes. Servando de los Angeles did not protest the election.
From all of the foregoing, the total votes of Eulogio Rodriguez must be reduced by 50 votes,
leaving him a total of 4,271 only, or a clear majority of 114 votes.
Therefore, with the modification herein indicated, the judgment of the lower court is affirmed as
modified, and it is hereby ordered and decreed that the record be immediately returned to the lower
court with direction that a judgment be entered directing and ordering the provincial board of
inspectors to amend its count accordingly.
CIPRIANO ABAÑIL, ET AL., petitioners-appellees,
vs.
JUSTICE OF THE PEACE COURT OF BACOLOD, NEGROS OCCIDENTAL, ET AL.
In the year 1937 the total number of registered voters in the municipality of Talisay, Negros
Occidental, was 3,658. In 1938 the electoral census of the place, after the registration on September
24 and October 1, 1938, showed that the number of registered voters had increased to 18,288. A few
days before the election for Assemblymen on November 8, 1938, or on October 18, 1938, 17,344
petitions were filed in the justice of the peace court of Bacolod. Negros Occidental, for the
exclusion of the names of an equal number of persons from the permanent list of registered voters
of Talisay, Negros Occidental, on the grounds that they were not residents of Talisay n accordance
with the Election Code, that they could not prepare their ballots themselves, and that their
registration as voters was not done in accordance with law. The hearing of the petitions for
exclusion was held on October 28, 1938. After attorneys Hilado, Parreño, Remitio and Severino
entered their appearance for the challenged voters, the justice of the peace of Bacolod ascertained
who of the challenged voters were present in court and who were absent. Thereafter the said justice
of the peace declared those who were absent in default. Failing to obtain a reconsideration, the
attorneys for the challenged voters moved that, since the presentation of evidence had not yet
commenced, all the petitions be forwarded to the Court of First Instance of Negros Occidental
which was then presided over by two Judges. The attorneys for the petitioners in the said 17,344
exclusion cases objected on the ground that the aforesaid attorneys had no authority to represent
those who were absent. Whereupon the justice of the peace of Bacolod ruled that said attorneys
could represent only the 87 challenged voters who were present in the court room and accordingly
remanded their cases to the Court of First Instance of Negros Occidental. At the same time the
justice of the peace dismissed 253 of the petitions upon motion of the petition upon motion of the
petitioners themselves. Although no evidence was presented by the petitioners in support of their
petition against those who, were declared in default, the justice of the peace of Bacolod ordered
their exclusion from the list of voters on the ground that it was the duty of the challenged voters
appear in court in order to be personally examined in accordance with section 118 (f) of the Election
Code, as one of the grounds for their exclusion from the list of voters was that they could not
prepare their ballots themselves, that is, that they could not read and write. The attorneys for the
challenged voters received notice of the decision of the justice of the peace of Bacolod on
November 2, 1938, when the present petition for certiorari was instituted in the Court First Instance
of Negros Occidental by the petitioners in their own behalf and in behalf of the other challenged
voters for the purpose of having the judgment of the justice of the peace of Bacolod in the aforesaid
exclusion proceedings set aside. After hearing, the Honorable Judge Sotero Rodas of the Court of
First Instance of Negros Occidental rendered judgment setting aside the decision of the respondent
justice of the peace of Bacolod and ordering the restoration of the excluded voters in the permanent
electoral census of Talisay, Negros Occidental. From this judgment the instant appeal was brought,
and the respondents-appellants make an elaborate assignment of nine errors. In view of the result
hereinbelow reached, we do not consider it necessary to consider seriatim these errors.
While the present controversy may seem academic because the 1938 election is over, we have
nevertheless assumed the task of deciding the same on its merits in view of the imperative necessity
and importance of having a correct electoral census in the municipality of Talisay, Negros
Occidental, and for that matter in any municipality or city in the Philippines, for use in future
elections. In the scheme of our present republican government, the people are allowed to have a
voice therein through the instrumentality of suffrage to be availed of by those possessing certain
prescribe qualifications (Article V, Constitution of the Philippines; sections 93 and 94, Election
Code). The people in clothing a citizen with the elective franchise for the purpose of securing a
consistent and perpetual administration of the government they ordain, charge him with the
performance of a duty in the nature of a public trust, and in that respect constitute him a
representative of the whole people. This duty requires that the privilege thus bestowed should be
exercised, not exclusively for the benefit of the citizen or class of citizens professing it, but in good
faith and with an intelligent zeal for the general benefit of the state. (U.S. vs. Cruikshank, 92 U. S.,
588.) In the last analysis, therefore, the inclusion from the permanent electoral list of any voter
concerns not only the latter in his individual capacity but the public in general.
Section 113 of the Election Code provides that if the Judge of the Court of First Instance is in the
province, the proceedings for the inclusion from the list of voters shall, upon petition of any
interested party filed before the presentation of evidence, be remanded to the said Judge who shall
hear and decide the same in the first and last instance. When, therefore, the attorneys for the
challenged voters moved the justice of the peace of Bacolod to remand all the exclusion cases to the
Court of First Instance of Negros Occidental, then presided over by two Judges, it was mandatory
on said justice of the peace to grant the motion. Without deciding whether the attorneys who
appeared for the challenged voters were in fact authorized by all, it is our opinion that, in view of
the extraordinary circumstance that the challenged voters were more than seventeen thousand and a
representative number thereof were present, and in view of the nature of the proceedings which
affect public interest, it was error for the aforesaid justice of the peace not to have remanded all the
petitions for exclusion to the Court of First Instance of Negros Occidental. Thereafter, in the interest
of prompt and economical administration of justice the necessary arrangement could have been
made to enable the corresponding judge of First Instance of the province to proceed to Talisay and
hear the cases there.
The judgment appealed from will accordingly be reversed and in the exercise of our discretionary
power (Cason vs. Rickards, 5 Phil., 611; Rementeria vs. Lara, 6 Phil., 532; Agonoy vs. Ruiz, 11
Phil, 204; Muerteguy & Aboitiz vs. Delgado, 22 Phil., 109; Hongkong & Shanghai Banking
Corporation vs. Aldanese, 46 Phil., 713; Tinsay vs. Yusay, 47 Phil., 639; Singh vs. Tan Chay, 51
Phil., 259; Province of Tayabas Perez, 56 Phil., 257), the case remanded to the Court First Instance
of Negros Occidental with instruction to hear and decide the petitions for exclusion of the merits, in
the first and last instance (section 113, Electoral Code), giving the parties every opportunity to
present their respective evidence. so that it may thereafter make such corrections in the electoral
census of Talisay, Negros Occidental, as may be proper (section 90, Electoral Code), and to refer to
the Solicitor-General such violations of the Election Law as might have been committed. Without
pronouncement as to costs.
G.R. No. 136191 November 29, 1999
JESUS O. TYPOCO, JR., petitioner,
vs.
COMMISSION ON ELECTIONS (COMELEC) EN BANC, and JESUS EMMANUEL
PIMENTEL, respondents.
GONZAGA-REYES, J.:
Before us is a petition for certiorari and prohibition to annul and set aside the resolution of
the Commission on Elections (COMELEC) En Banc dated October 12, 1998 which
dismissed herein petitioner Jesus Typoco, Jr.'s (TYPOCO) petition for Annulment of
Election or Election Results and/or Declaration of Failure of Elections docketed as SPA
No. 98-413.
The factual antecedents insofar as pertinent to the instant petition are as follows:
TYPOCO and private respondent Jesus Pimentel (PIMENTEL) were both candidates for
the position of Governor in Camarines Norte during the May 11, 1998 elections. On May
22, 1998, TYPOCO together with Winifredo Oco (OCO), a candidate for the position of
Congressman of the Lone District of Camarines Norte filed a Joint Appeal before the
COMELEC docketed as SPC-No. 98-133. TYPOCO and OCO questioned therein the
ruling of the Provincial Board of Canvassers of Camarines Norte which included in the
canvass of votes the Certificate of Canvass of the Municipality of Labo, Camarines Norte.
TYPOCO also filed a Motion to Admit Evidence to Prove That a Substantial Number of
Election Returns Were Manufactured as They Were Prepared by One Person based on
the report of one Francisco S. Cruz, a Licensed Examiner of Questioned Document, who
examined copies of election returns of the LAKAS-NUCD.
On June 4, 1998, COMELEC (Second Division) issued an Order dismissing the Joint
Appeal. Thereafter, TYPOCO filed a Motion for Reconsideration reiterating his motion to
admit evidence to prove the manufacturing and/or spurious character of the questioned
returns which were allegedly prepared in group by only one person and which will
materially affect the results of the election for the position of Governor.
In the meantime, on June 10, 1998, TYPOCO and OCO filed with the COMELEC En Banc
a separate petition for Annulment of Election or Election Results and/or Declaration of
Failure of Elections in several precincts, docketed as SPA No. 98-413, subject of the
instant petition. The petition alleged that massive fraud and irregularities attended the
preparation of the election returns considering that upon technical examination, 305
election returns were found to have been prepared in group by one person.
On July 15, 1998, the COMELEC En Banc issued an Order directing the Voters
Identification Division of the Commission's Election Records and Statistics Department
(ERSD) to examine the COMELEC copies of the 305 election returns questioned by
TYPOCO.
On August 12, 1998, the COMELEC's ERSD Voters Identification Division submitted its
Questioned Document Report to the COMELEC En Banc on the results of its technical
examination of the questioned election returns. The report disclosed, among others, that
the "handwritten entries on 278 COMELEC copies of election returns particularly under the
columns Congressman/Governor/Vice-Governor/Nickname or Stage Name, were written
by one and the same person in groups." 1
On August 31, 1998, the COMELEC En Banc issued the resolution denying petitioner's
motion for reconsideration in SPC No. 98-133 on the ground that an election protest is the
proper remedy.
TYPOCO then filed a petition for certiorari and prohibition under Rule 65 with prayer for the
issuance of a temporary restraining order and/or writ of preliminary injunction assailing the
Order dated June 4, 1998 and the Resolution dated August 31, 1998, respectively issued
in SPC No. 98-133 by the COMELEC (Second Division) and the COMELEC En Banc. 2 In
a resolution dated September 22, 1998, this Court dismissed the petition finding no grave
abuse of discretion on the part of respondent COMELEC in issuing the aforesaid assailed
orders. TYPOCO's motion for reconsideration was likewise denied by this Court with
finality on September 29, 1998.
On October 12, 1998, the COMELEC En Banc promulgated a resolution in SPA 98-413,
dismissing TYPOCO's petition for the Declaration of Failure of Elections and/or Annulment
of Elections in Camarines Norte for lack of merit, thus:
The grounds cited by petitioners do not fall under any of the instances enumerated in Sec.
6 of the Omnibus Election Code.
In Mitmug vs. Commission on Elections, 230 SCRA 54, the Supreme Court ruled that
before the Comelec can act on a verified petition seeking to declare a failure of elections,
at least two (2) conditions must concur: (a) no voting has taken place in the precincts on
the date fixed by law, or even if there was voting, the election nevertheless resulted in
failure to elect; and (b) the votes that were not cast would affect the result of the election.
From the allegations of the petition in the instant cases, it is clear that an election took
place and that it did not result in a failure to elect. In fact, by separate resolution, the
Commission has authorized the provincial board of canvassers to proclaim the winning
candidates and this as been implemented.
WHEREFORE, the Commission hereby DISMISSES the petition in each of the above
cases, for lack of merit. 3
Hence, the instant petition on the grounds that the COMELEC En Banc gravely abused its
discretion as follows: 1. in holding that the grounds cited by TYPOCO do not fall under any
of the instances enumerated in Section 6 of the Omnibus Election Code; 2. in refusing to
annul the election or the election results or to declare a failure of election despite the fact
that massive fraud and irregularities attended the preparation of the election returns; 3. in
failing to proclaim TYPOCO as the winning candidate for Governor; 4. in failing to annul
the proclamation of PIMENTEL which is null and void from the beginning; 5. in ruling that
an election protest is the proper remedy and not an annulment of the election or election
results and/or declaration of failure of elections. 4
Simply stated, did the COMELEC commit grave abuse of discretion in not declaring a
failure of elections for the position of Governor in Camarines Norte in the May 11, 1998
elections?
In a Manifestation and Motion (In Lieu of Comment) filed by the Office of the Solicitor
General (OSG), the latter joins TYPOCO's prayer for affirmative relief. The OSG explains
thus:
13. The petition a quo (SPA No. 98-413) specifically prayed for annulment of election
returns and/or election results in the protested precincts where massive fraud and
irregularities were allegedly committed in the preparation of the election returns which,
upon technical examination of their authentic copies, were found to have been prepared in
groups by one person (Petition, Annex A, p. 2).
14. On this score, it should be stressed that election returns are prepared separately and
independently by the Board of Election Inspectors assigned in each and every precinct.
Hence, uniformity in the handwritten entries in the election returns emanating from different
electoral precincts, as in this case speaks only of one thing — THE ELECTION RETURNS
WERE FABRICATED OR TAMPERED WITH.
Here, the COMELEC itself, through its own Voters' Identification Department, certified that
out of the 305 election returns in the 12 municipalities of Camarines Norte, 278 or 91.14%
thereof were found to have been written by one person which fact lucidly speaks of
"massive fraud" in the preparation of election returns.
15. Precisely, massive fraud committed after the voting and during the preparation of the
election returns resulting in a failure to elect, is a ground for annulment of election under
Section 6 of the Omnibus Election Code. As such therefore, the case at bar falls within the
jurisdiction of COMELEC.
18. At any rate, there is merit to petitioner's claim that the votes in the subject election
returns, if correctly appreciated, will materially affect the results of the election for
Governor, i.e.,
TYPOCO PIMENTEL
Votes per PBC Canvass 53,454 64,358
Less: Votes obtained from
Fraudulent Returns 11,253 27,060
Difference 42,201 37,325
Vote Lead of Petitioner 4,876 5
The authority of the COMELEC to declare a failure of elections is derived from Section 4 of
Republic Act No. 7166, otherwise known as, "The Synchronized Elections Law of 1991,
"which provides that the COMELEC sitting En Banc by a majority vote of its members may
decide, among others, the declaration of failure of election and the calling of special
elections as provided in Section 6 of the Omnibus Election Code. Said Section 6, in turn,
provides as follows:
Sec. 6. Failure of election. — If, on account of force majeure, violence, terrorism, fraud or
other analogous causes the election in any polling place has not been held on the date
fixed or had been suspended before the hour fixed by the law for the closing of the voting,
or after the voting and during the preparation and the transmission of the election returns
or in the custody or canvass thereof, such election results in a failure to elect, and in any of
such cases the failure or suspension of election would affect the result of the election, the
Commission shall, on the basis of verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election not held, suspended
or which resulted in a failure to elect on a date reasonably close to the date of the election
not held, suspended or which resulted in a failure to elect but not later than thirty days after
the cessation of the cause of such postponement or suspension of the election or failure to
elect.
The same provision is reiterated under Section 2, Rule 26 of the Revised COMELEC
Rules.
Based on the foregoing laws, the instant petition must fail because the allegations therein
do not justify a declaration of failure of election.
The COMELEC correctly pointed out that in the case of Mitmug vs. Commission on
Elections 6, this Court held that before COMELEC can act on a verified petition seeking to
declare a failure of election, two (2) conditions must concur: first, no voting has taken place
in the precincts concerned on the date fixed by law or, even if there was voting, the
election nevertheless resulted in a failure to elect; and second, the votes cast would affect
the result of the election. In Loong vs. Commission on Elections 7, this Court added that the
cause of such failure of election should have been any of the following: force majeure,
violence, terrorism, fraud of other analogous cases. Further, in Borja, Jr. vs. Commission
on Elections 8, we stated that:
The COMELEC can call for the holding or continuation of election by reason of failure of
election only when the election is not held, is suspended or results in a failure to elect. The
latter phrase, in turn, must be understood in its literal sense, which is "nobody was
elected."
Clearly then, there are only three (3) instances where a failure of election may be declared,
namely: (a) the election in any polling place has not been held on the date fixed on account
of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in
any polling place had been suspended before the hour fixed by law for the closing of the
voting on account of force majeure, violence, terrorism, fraud or other analogous causes;
(c) after the voting and during the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect an account of
force majeure, violence, terrorism, fraud, or other analogous
causes. 9 In all instances there must have been failure to elect; this is obvious in the first
scenario where the election was not held and the second where the election was
suspended. As to the third scenario, the preparation and transmission of the election
returns which give rise to the consequence of failure to elect must as aforesaid be literally
interpreted to mean that nobody emerged as a winner.
None of these circumstances is present in the case at bar. While the OSG joins TYPOCO
in pinpointing anomalies in the preparation of the election returns due to the uniformity of
the handwriting in the same, implying that fraud was committed at that stage, the fact is
that the casting and counting of votes proceeded up to the proclamation of the winning
candidate thus precluding the declaration of a failure of election. While fraud is a ground to
declare a failure of election, the commission of fraud must be such that it prevented or
suspended the holding of an election including the preparation and transmission of the
election returns. 10
It can thus readily be seen that the ground invoked by TYPOCO is not proper in a
declaration of failure of election. TYPOCO's relief was for COMELEC to order a recount of
the votes cast, on account of the falsified election returns, which is properly the subject of
an election contest. 11
The COMELEC, therefore, had no choice but to dismiss TYPOCO's petition in accordance
with clear provisions of the law and jurisprudence.
WHEREFORE, finding no grave abuse of discretion committed by public respondent
Commission on Elections, the petition is DISMISSED and its Resolution En Banc of
October 12, 1998 dismissing the petition before it on the ground that the allegations therein
do not justify a declaration of failure of election is AFFIRMED.
G.R. No. 78461 August 12, 1987
AUGUSTO S. SANCHEZ vs. COMMISSION ON ELECTIONS, respondent.
No. 79146 August 12,1987
JUAN PONCE ENRILE, vs.COMMISSION ON ELECTIONS AND SANTANINA RASUL,
No. 79212 August 12,1987
JUAN PONCE ENRILE, vs.COMMISSION ON ELECTIONS AND SANCHEZ.
In G.R. No. 78461, candidate Augusto S. Sanchez (Sanchez) filed his petition on May 28,
1987 praying that respondent Commission on Elections (Comelec) after due hearing, be
directed to conduct a recount of the votes cast three months ago in the May 11, 1987
senatorial elections to determine the true number of votes to be credited to him and prayed
further for a restraining order directing the Comelec to withhold the proclamation of the last
four (4) winning candidates on the ground that votes intended for him were declared as
astray votes because of the sameness of his surname with that of disqualified candidate
Gil Sanchez, whose name had not been crossed out from the Comelec election returns
and other election forms.
Sanchez further alleged that on May 12, 1987, he filed an "Urgent Petition to Recount
and/or Re-appreciate Ballots" with the Comelec; acting on the petition, the Comelec
ordered Sanchez to submit a Bill of Particulars where votes for "Sanchez" were not
counted in his favor. Sanchez' compliance asserted that the invalidation of "Sanchez"
votes occurred in all regions where the assailed Comelec forms were distributed and cited
specific precincts in Quezon City, Batangas, Pampanga, Cebu, Caloocan, Manila and Iloilo
as examples, without any particulars as to the number of votes.
The Court in its Resolutions of June 25, 1987 and July 10, 1987 sustained Comelec's
position that it be allowed to complete the canvass of the returns of the senatorial
elections, (estimated at about 240,000 votes as of June 25, 1987) which would be subject
thereafter to its resolution of Sanchez' therein pending petition for recount on the basis of
the merits and relevant facts thereof, and therefore found no basis to issue the restraining
order prayed for by Sanchez.
In the interval, it appears that on June 26, 1987, candidate Santanina T. Rasul (Rasul) filed
her motion for intervention and opposition to Sanchez' petition for recount pending before
respondent Comelec. On July 2, 1987, Rasul also filed her Supplemental Opposition
raising additional grounds against the recount. On July 2 and 3, 1987, Rasul and candidate
Juan Ponce Enrile (Enrile), then ranked 24th and 23rd, respectively immediate filed a
petition with respondent Comelec praying for their immediate proclamation as duly-elected
senators. The Comelec deferred action on these two petitions per its resolution dated July
4, 1987, until after the remaining uncanvassed returns shall have been completely
canvassed. On July 11, 1987, Enrile also filed his motion for intervention and a motion to
dismiss the Sanchez petition for recount. On July 13, 1987, the Comelec granted the
motions for intervention filed by candidates Rasul and Enrile.
On July 16, 1987, the Comelec, by a vote of four to three, promulgated its decision
dismissing petitioner Sanchez' petition for recount. On July 20, 1987, petitioner Sanchez
filed a motion for reconsideration of the decision of July 16, 1987, which was opposed by
intervenors Rasul and Enrile.
On July 25, 1987, the Comelec proclaimed Rasul as the 23rd senator-elect. At that time,
the lead of Rasul over Enrile was 1,910 votes only while the lead of Enrile over Sanchez
was 73,034 votes with 31,000 votes still to be canvassed in three (3) municipalities of Sulu,
namely, Parang, Maimbung and Patikul, and in 15 precincts in Lanao del Sur. In
proclaiming Rasul as the 23rd senator-elect, the Comelec, while admitting that it was
mathematically possible for Enrile to overtake Rasul, justified its action by rationalizing that
"this is improbable, if not highly improbable" considering that the untabulated returns come
from Muslim areas or towns "which are all bailiwicks of candidate Rasul, " and "between a
Muslim candidate and a non-Muslim one, in all probability the Muslim candidate will obtain
a higher percentage of the votes cast."
On July 28, 1987, Enrile filed with this Court his petition [G.R. No. 79146 — Juan Ponce
Enrile v. Comelec and Santanina Rasul] (1) to compel the Comelec to complete the
canvass of votes cast for senators in the May 11, 1987 elections to determine the 23rd and
24th placers in the senatorial race and (2) to annul the proclamation of respondent Rasul
or to suspend the effects of such proclamation pending the determination of the 23rd and
24th placers, on the ground of mathematical possibility that the uncanvassed votes would
materially affect the 23rd and 24th rankings in the senatorial race, while the Comelec's
proclamation of the first 20 elected senators was predicated upon a finding that the first 20
placers would no longer be affected by the certificates of canvass still to be submitted to
the Comelec; and that Comelec gave the same reason when it proclaimed subsequently
the 21st placer (Ernesto Herrera) and 22nd placer (Mamintal Tamano).
On July 24, 1987, however, respondent Comelec, by a vote of five to two, announced its
second decision reversing its earlier decision of July 16, 1987 of dismissal of Sanchez'
petition and that it was instead granting Sanchez' petition for recount and/or re-
appreciation of ballots. Comelec actually released this second decision on July 30, 1987.
On August 3, 1987, Enrile filed with this Court his second petition [G.R. No. 79212 — Juan
Ponce Enrile v. Comelec and Augusto S. Sanchez] to (1) annul the Comelec decision
granting Sanchez' petition for recount; and (2) to compel it to proclaim Enrile as duly-
elected senator, with prayer for issuance of a temporary restraining order. Enrile alleged
that the Comelec exceeded its jurisdiction in granting Sanchez' petition for recount and
abused its discretion in refusing to proclaim him (Enrile on the ground that Sanchez'
petition for recount is not a pre-proclamation controversy which involves issues affecting
extrinsic validity, and not intrinsic validity, of the said election returns and that as of July 25,
1987 up to now, Rasul's lead over him was only 1,916 votes while his lead over Sanchez
was 73,034 votes, with only 31,000 votes remaining to be canvassed in the three (3) towns
of Sulu and fifteen (15) precincts in Lanao del Sur could not offset his lead over Sanchez.
In its resolution of August 4, 1987, the Court, inter alia, required respondents to comment
on Enrile's petition against the Comelec's recount decision, and directed the maintenance
of the status quo. The parties were heard in oral argument at the joint hearing held on
August 6, 1987, and the cases were thereafter submitted for resolution.
The basic issue at bar — which Sanchez himself avers in his petition is "a case of first
impression" — is whether his petition for recount and/or re-appreciation of ballots filed with
the Comelec may be considered a summary pre-proclamation controversy falling within the
Comelec's exclusive jurisdiction (Sec. 242, Omnibus Election Code) or properly pertains to
the realm of election protest falling within the exclusive jurisdiction of the Senate Electoral
Tribunal as "the sole judge of all contests relating to the election, returns and qualification
of the [Senate's] members." (Art. VI, Sec. 17, Constitution)
Without prejudice to the issuance of an extended opinion and after taking into
consideration the applicable legal provisions and the contentions of the contending
candidates as well as the two conflicting decisions of the Comelec, the Court rules that
Sanchez' petition for recount and/or re-appreciation of the ballots cast in the senatorial
elections does not present a proper issue for a summary pre-proclamation controversy.
Considerations of definition, usage, doctrinal jurisprudence and public policy demand such
a ruling.
1. Sanchez anchors his petition for recount and/or reappreciation on Section 243,
paragraph (b) of the Omnibus Election Code 1 in relation to Section 234 thereof 2 with
regard to material defects in canvassed election returns. He contends that the canvassed
returns discarding "Sanchez" votes as stray were "incomplete" and therefore warrant a
recount or reappreciation of the ballots under Section 234. A simple reading of the basic
provisions of the cited Section shows readily its inapplicability. By legal definition and by
the very instructions of the Comelec (Res. No. 1865, Sec. 6, promulgated on March 11,
1987), an election return is incomplete if there is "omission in the election returns of the
name of any candidate and/or his corresponding votes" (Sec. 234) or "in case the number
of votes for a candidate has been omitted." (Sec. 6, Res. No. 1865)
Here, the election returns are complete and indicate the name of Sanchez as well as the
total number of votes that were counted and appreciated as votes in his favor by the
boards of inspectors. The fact that some votes written solely as "Sanchez" were declared
stray votes because of the inspectors' erroneous belief that Gil Sanchez had not been
disqualified as a candidate, involves an erroneous appreciation of the ballots. It is
established by the law as well as jurisprudence (the cited section being a substantial
reproduction of Section 172 of the 1978 Election Code and previous election laws) that
errors in the appreciation of ballots by the board of inspectors are proper subject for
election protest and not for recount or reappreciation of the ballots.
2. The appreciation of the ballots cast in the precincts is not a "proceeding of the board of
canvassers" for purposes of pre-proclamation proceedings under section 241, Omnibus
Election Code, but of the boards of election inspectors who are called upon to count and
appreciate the votes in accordance with the rules of appreciation provided in section 211,
Omnibus Election Code. Otherwise stated, the appreciation of ballots is not part of the
proceedings of the board of canvassers. The function of ballots appreciation is performed
by the boards of election inspectors at the precinct level.
3. The scope of pre-proclamation controversy is limited to the issues enumerated under
sec. 243 of the Omnibus Election Code. The enumeration therein of the issues that may be
raised in pre-proclamation controversy, is restrictive and exclusive. In the absence of any
clear showing or proof that the election returns canvassed are incomplete or contain
material defects (sec. 234), appear to have been tampered with, falsified or prepared
under duress (sec. 235) and/or contain discrepancies in the votes credited to any
candidate, the difference of which affects the result of the election (sec. 236), which are the
only instances where a pre-proclamation recount maybe resorted to, granted the
preservation of the integrity of the ballot box and its contents, Sanchez' petition must fail.
The complete election returns whose authenticity is not in question, must be prima facie
considered valid for the purpose of canvassing the same and proclamation of the winning
candidates.
4. To expand the issues beyond those enumerated under sec. 243 and allow a recount/re-
appreciation of votes in every instance where a claim of misdeclaration of stray votes is
made would open the floodgates to such claims and paralyze canvass and proclamation
proceedings, given the propensity of the loser to demand a recount. The law and public
policy mandate that all pre-proclamation controversies shall be heard summarily by the
Commission after due notice and hearing and just as summarily decided. (Sec. 246,
Omnibus Election Code)
5. The Court has always stressed as in Alonto vs. Comelec 3 that "the policy of the election
law is that pre-proclamation controversies should be summarily decided, consistent with
the law's desire that the canvass and proclamation be delayed as little as possible. As
declared in Abes et al. vs. Commission on Elections, L-28348, December 15, 1967, the
powers of the Comelec are essentially executive and administrative in nature, and the
question of whether or not there had been terrorism, vote buying and other irregularities in
the election should be ventilated in a regular election protest, and the Commission on
Elections is not the proper forum for deciding such matters," and that the Comelec and the
courts should guard "both against proclamation grabbing through tampered returns" and
"the equally pernicious effects of excessive delay of proclamations" and "attempts to
paralyze canvassing and proclamation." To allow the recount here notwithstanding the
multifarious administrative and financial problems of conducting such a recount, as
enumerated by the Comelec in its two decisions — when now three months after the
elections the question of who is entitled to the 24th seat of the Senate would remain
unresolved for how long no one can tell — is unthinkable and certainly contrary to public
policy and the mandate of the law that the results of the election be canvassed and
reported immediately on the basis of the authentic returns which must be accorded prima
facie status as bona fide reports of the votes cast for and obtained by the candidates. 4
6. Election cases involved not only the adjudication of the private interest of rival
candidates but also the paramount need of dispelling the uncertainty which beclouds the
real choice of the electorate with respect to who shall discharge the prerogatives of the
offices within their gift. They are imbued with public interest (Vda. de Mesa v. Mencias, 18
SCRA 533, 538).
7. The ground for recount relied upon by Sanchez is clearly not among the issues that may
be raised in a pre- proclamation controversy. His allegation of invalidation of "Sanchez"
votes intended for him bear no relation to the correctness and authenticity of the election
returns canvassed. Neither the Constitution nor statute has granted the Comelec or the
board of canvassers the power in the canvass of election returns to look beyond the face
thereof, once satisfied of their authenticity (Abes v. Comelec, 21 SCRA 1252,1256).
8. In Grand Alliance for Democracy v. Comelec, et al., G.R. No. 78302, promulgated May
27, 1987, the Court restated certain principles governing canvass proceedings, which are
fully applicable here, mutatis mutandis, to wit:
The Court has restated the settled doctrine in senatorial elections in Ilarde v. Commission
on Elections, 31 SCRA 72, thus: "Canvass proceedings are administrative and summary in
nature, and a strong prima facie case backed up by a specific offer of evidence and
indication of its nature and importance has to be made out to warrant the reception of
evidence aliunde and the presentation of witnesses and the delays necessarily entailed
thereby. Otherwise, the paralyzation of canvassing and proclamation proceedings leading
to a vacuum in so important and sensitive an office as that of Senator of the Republic could
easily be brought about this time involving the eight place and next time involving perhaps
all the eight places, when it is considered that the position of senator is voted for,
nationwide by all the voters of the 66 provinces and 57 cities comprising the Philippines."
And in Anni v. Izquierdo 57 SCRA 692, the Court declared that. "The decisive factor is that
where it has been duly determined by Comelec after investigation and examination of the
voting and registration records that actual voting and election by the registered voters had
taken place in the questioned precincts, the election returns cannot be disregarded and
excluded with the resulting disenfranchisement of the voters but must be accorded prima
facie status as bona fide reports of the result of the voting for canvassing and proclamation
purposes."
As the Court stated in Anni v. Rasul, 46 SCRA 758, "The rule has been time-tested. To
allow a respondent in the Comelec to raise belated questions concerning returns at any
time during the pendency of the case on review before the Comelec notwithstanding that
he has not originally raised such questions before the canvassing board and only when he
finds his position endangered would mean undue delays in pre-proclamation proceedings
before the Comelec, ... The Court has stressed that Comelec and the courts should guard
both against the proclamation grabbing through tampered and spurious returns as well as
attempts and machinations to paralyze canvassing and proclamation ...
It should be added that the other alleged irregularities, such as the omissions of the
Commission on Elections in the distribution and protection of the election forms and
paraphernalia, involve the discharge of its administrative duties and so do not come under
the jurisdiction of this Court, which can review the decisions, orders and rulings of the body
only in cases of grave abuse of discretion committed by it in the discharge of its quasi-
judicial powers (Aratuc v. Commission on Elections, 88 SCRA 251; Guevara v.
Commission on Elections, G.R. No. L-12596, July 31, 1958; Filipinas Engineering Co. v.
Ferrer, 135 SCRA 25).
9. As of July 25, 1987, and as the canvassing results stand, Rasul as of her proclamation
as the 23rd Senator-elect, had a lead over Enrile of 1,910 votes, while Enrile had a lead
over Sanchez of 73,034 with only 31,000 votes still to be canvassed (in three municipalities
of Sulu and in 15 precincts of Lanao del Sur.). Said uncanvassed votes (31,000) are
clearly not sufficient in number to offset the 73,034 votes lead of Enrile over Sanchez, even
if awarded to the latter. There is no need to wait for the canvass of the votes from the 3
municipalities of Sulu and the 15 precincts in Lanao del Sur, which still remains up to this
late day a big question mark of when and how they will finally get canvassed, assuming
their integrity has been preserved. Candidate Juan Ponce Enrile is therefore entitled to
proclamation as the 24th senator-elect in the May 11, 1987 elections. Enrile's petition
against Rasul has been rendered moot.
ACCORDINGLY, the Petition in G.R. No. 79212 (Juan Ponce Enrile v. Commission on
Election and Augusto Sanchez) is hereby GRANTED and the decision of respondent
Commission on Elections promulgated on July 30, 1987 granting Sanchez' petition for
recount is hereby SET ASIDE. The respondent Comelec is hereby ordered to proclaim
petitioner Juan Ponce Enrile as a duly elected senator in the May 11, 1987 elections. The
petitions in G.R. No. 78461 (Augusto S. Sanchez v. Commission on Election) and G.R. No.
79146 (Juan Ponce Enrile v. Commission on Elections and Santanina T. Rasul) are both
DISMISSED. This decision shall be IMMEDIATELY EXECUTORY upon its promulgation.