In this petition for certiorari
and prohibition, with a prayer for the issuance of a temporary restraining order (TRO), petitioner Hadji Hamid Lumna Patoray assails the June 28, 1996 Resolution of the COMELEC (Second Division) annulling his proclamation as mayor-elect of Tamparan, Lanao del Sur, and the August 16, 1996 Order of the COMELEC en banc holding in abeyance the recanvassing of votes cast in election precinct numbers 16 and 20-A.
The facts. In the May 8, 1995 elections, petitioner HADJI HAMID LUMNA PATORAY and private respondent TOPAAN D. DISOMIMBA were the closest rivals for the mayoralty post in the municipality of Tamparan, Lanao del Sur. The counting of the ballots showed that petitioner won over private respondent by a slim margin of twenty-five (25) votes, with petitioner receiving 3,778 votes and private respondent garnering 3,753 votes.
During the canvass of the election returns, private respondent objected to the inclusion of four (4) returns from precinct nos. 16, 17, 19 and 20-A. The municipal board of canvassers (MBC) overruled his objections. Private respondent appealed to the COMELEC.
In its July 12, 1995 Resolution, the COMELEC modified the decision of the MBC and excluded from the canvass only the two election returns from precinct nos. 16 and 20-A. With the exclusion of these returns, the twenty-five (25) votes margin of petitioner was wiped out, with private respondent now receiving the highest number of votes at 3,612 and petitioner coming in second with 3,419 votes.
Accordingly, petitioner came to this Court on certiorari
, 1 impugning the July 12, 1995 Resolution of the COMELEC.
In our En Banc Decision, 2 dated October 24, 1995, we noted that since there was a discrepancy between the "taras" and the written figures of the votes received by the candidates in the election return for precinct 16, the COMELEC (Second Division) should have also ordered a recount of the ballots or used the Certificate of Votes cast in precinct no. 16 to determine the true number of votes obtained by each party, after determining that the ballot box has not been tampered with pursuant to Section 236 of the Omnibus Election Code. 3 As to the election return for precinct no. 20-A, we ruled that the COMELEC erred in resorting to the Certificate of Votes in excluding the return in said precinct. Since the return was incomplete for it lacked the data as to provincial and congressional candidates, the applicable provision would be Section 234 of the Omnibus Election Code which deals with material defects in election returns. Thus, we ruled that the COMELEC should have first determined the integrity of the ballot box, ordered the opening thereof and recounted the ballots therein after satisfying itself that the integrity of the ballots is intact. 4 We then directed the COMELEC to issue another Order in accordance with said Decision.
Accordingly, the COMELEC En Banc issued its January 18, 1996 Order 5 implementing our Decision. However, without first ascertaining whether the integrity of the ballots and ballot boxes were intact, COMELEC immediately ordered the MBC to reconvene in the COMELEC Office, Manila, as a Special Board of Election Inspectors and recount the ballots cast in precincts 16 and 20-A, prepare new election returns, enter the new totals of the votes and then proclaim the winner.
Forthwith, private respondent filed a motion with the COMELEC to hold in abeyance the recount of the ballots until after it has determined that the integrity of the ballot boxes and the ballots therein had been duly preserved pursuant to Sections 234 and 235 of the Omnibus Election Code.
In an Order, dated January 25, 1996, the COMELEC denied said motion and held that there is "no need to preliminarily determine that the identity and integrity of the ballots therein have been duly preserved" for the recount of votes is not done upon the initiative of this Commission but upon orders of the Supreme Court. 6 This Order was not challenged by private respondent who even participated in the recount.
Pursuant to COMELEC’s January 18, 1996 Order, the MBC, acting as the special Board of Election Inspectors, reconvened on January 25, 1996 at the Comelec office in Manila to recount the ballots and recanvass the returns from precinct nos. 16 and 20-A. During the canvass, private respondent objected to the inclusion of the ballots from precincts 16 and 20-A on the ground that "the election returns are manufactured, fabricated or not authentic considering that the election returns include votes or ballots which are spurious, marked and invalid ballots." 7chanroblesvirtual|awlibrary
The MBC rejected these objections holding that they cannot be considered in a pre-proclamation case. It proceeded with the recounting and recanvassing of votes where petitioner obtained a total of 3,778 votes as against private respondent’s 3,753 votes. On January 26, petitioner was proclaimed as the duly-elected mayor of Tamparan, Lanao del Sur. 8 On the same day, private respondent moved to declare the recount as null and void. 9 Instead of definitively passing upon the issue of whether or not the integrity of the ballot boxes and ballots for precincts 16 and 20-A was preserved, and thereafter rule on whether or not the two returns should be excluded, the COMELEC en banc merely noted 10 the motion in view of petitioner’s proclamation. On January 30, petitioner took his oath and assumed the Office of the Mayor of Tamparan.
On February 5, 1996, private respondent filed an election protest with the RTC of Marawi City. He also filed with the COMELEC (Second Division) a petition for the annulment of petitioner’s proclamation 11 on the ground that the MBC did not comply with Section 20 of R.A. 7166 in failing to rule on his objection during the canvass.
On June 28, 1996 the COMELEC (Second Division) issued a Resolution 12 granting the petition and annulling petitioner’s proclamation. It held that the MBC should have allowed private respondent to adduce evidence before it ruled on the objections, as provided under Section 20 of R.A. 7166. It thus concluded that at the time of the proclamation, private respondent’s objections were still pending before the MBC. COMELEC thus directed the MBC to reconvene and recanvass the two election returns, observing strictly the requirements of Section 20, R.A. 7166, and proclaim the winner accordingly.
Petitioner filed a motion for reconsideration 13 with the COMELEC en banc alleging that the procedure in R.A. 7166 on pre-proclamation cases apply only when there is a valid ground for a pre-proclamation controversy. Petitioner claimed that since the objections raised by private respondent pertained to the casting and appreciation of ballots, the proper remedy was an election protest. Hence, private respondent’s objection was correctly overruled by the MBC.
On August 1, 1996, the COMELEC en banc issued an Order, 14 thus:jgc:chanrobles.com.ph
"Pending consideration of the Motion for Reconsideration, the Commission hereby orders as follows:jgc:chanrobles.com.ph
"1. To direct the parties to maintain the status quo prevailing prior to the filing of the petition and this motion for reconsideration;
"2. To direct the Municipal Board of Canvassers to reconvene and recanvass the election returns pertaining to Precinct Nos. 16 and 20-A, strictly observing Section 20 of R.A. 7166;
"3. To constitute a new Municipal Board of Canvassers of Tamparan, Lanao del Sur . . .;
"4. To direct the previous Municipal Board of Canvassers of Tamparan to turn over all election documents pertaining to its canvass to the new Municipal Board of Canvassers herein created.
"SO ORDERED."cralaw virtua1aw library
On August 13, 1996, private respondent filed a Motion for Clarification 15 with the COMELEC en banc. He pointed that after the COMELEC Division annulled petitioner’s proclamation and ordered a recanvassing of the two returns, petitioner filed a motion for reconsideration with the en banc. Pending the resolution of this motion, the en banc, in its August 1 Order, directed the parties to maintain the status quo prior to the annulment of petitioner’s proclamation, yet, at the same time, ordered the recanvassing of the returns. Private respondent sought to clarify who, in the meantime, shall act as mayor of Tamparan. He also pointed that the August 1 Order of the en banc was highly questionable considering that by ordering a recanvass of the returns, the en banc in effect sustained that portion of the June 28 Resolution of the Division directing a recount, without resolving in its entirety the motion for reconsideration regarding the annulment of petitioner’s proclamation. He thus urged the COMELEC en banc to first resolve the motion for reconsideration in its entirety before ordering a recount of the ballots.
On August 16, 1996, acting on the Motion for Clarification, the COMELEC en banc issued an Order reversing its August 1 Order and holding in abeyance the recanvassing of the ballots until the resolution of petitioner’s pending motion for reconsideration.
In the meantime, at about 2:30 p.m. of the same date, pursuant to the August 1 Order 16 of the COMELEC en banc, the newly-constituted MBC reconvened at the session hall of the COMELEC to recanvass the two election returns. Before the proceedings, however, the MBC and the candidates received copies of the August 16 Order of the COMELEC en banc holding in abeyance the reconvening of the MBC until resolution of petitioner’s motion for reconsideration. The August 16 Order of COMELEC was issued without giving petitioner a chance to file his opposition thereto. In fact, petitioner’s counsel was unaware of the filing of private respondent’s Motion for Clarification for he received a copy of the motion only at about 3:00 p.m. of the same day. COMELEC, however, claimed that since the MBC was set to reconvene on August 16, it had no choice but to issue its Order on the same day suspending the recanvassing and without awaiting Opposition from petitioner.
In view of the COMELEC Order, the newly-constituted MBC adjourned its proceedings. The August 16 Order showed on its face that Commissioner Maambong was on official business but the latter denied this in a "Manifestation and Dissent" 17 stating that he was not informed that such Order was the subject of consultation. He registered his dissent against the August 16 Order since it would result in a piecemeal resolution of the case and could be misinterpreted as a form of flip-flopping on the part of the COMELEC. Thus, petitioner alleges that the August 16 Order was a falsified Order and issued by the COMELEC en banc with grave abuse of discretion.
Hence this petition for certiorari
and prohibition. 18
We find the petition impressed with merit.
As correctly noted by the Solicitor General, this petition is a mere sequel to the earlier case (G.R. No. 120823) between the same parties which was already decided by this Court on October 24, 1995. 19 The petition at bar actually involves a misinterpretation of our October 24, 1995 decision where we directed the COMELEC to order a recounting of ballots in precincts 16 and 20-A but only after determining that the integrity and identity of the ballots and ballot boxes were preserved, pursuant to Sections 234 and 236 of the Omnibus Election Code. Instead of complying with this directive, the COMELEC, in its January 18, 1996 Order, 20 immediately directed the MBC to reconvene and recount the ballots.
When private respondent filed a motion asking the COMELEC to first determine whether the integrity of the ballot boxes and ballots were preserved prior to reconvening of the MBC, COMELEC, in its Order dated February 25, 1996, 21 found "no need to preliminarily determine" this issue. The recounting proceeded and private respondent even participated therein. Hence, the February 25, 1996 Order of COMELEC became final and executory and with the participation of private respondent in the recount, he is deemed to have waived his right to impugn said Order.
We come now to the propriety of the procedure adopted by the municipal board of canvassers in refusing to consider the objections raised by private respondent to the election returns from precincts 16 and 20-A.
Pursuant to Section 20 of R.A. 7166, private respondent filed before the municipal board of canvassers (MBC) his written objection for the exclusion of returns for precincts 16 and 20-A, worded as follows: "that the election returns are manufactured, fabricated or not authentic, considering that the election returns includes votes on ballots which are spurious, marked and invalid ballots." 22 The MBC ruled that this is not a valid objection for a pre-proclamation case. The COMELEC, however, did not categorically rule whether the objection is valid in a pre-proclamation case. Instead, the COMELEC held that the MBC failed to follow the procedure outlined in Section 20 of R.A. 7166 when it refused to rule on this objection, continued with the canvassing and proclaimed petitioner as the winner.
Section 20 of R.A. 7166 provides for the procedure in the disposition of contested election returns, thus: When a party contests the inclusion or exclusion of a return in the canvass, on the grounds provided under Article XX or Sections 234-236, Article XIX of the Omnibus Election Code, the board of canvassers shall defer the canvass of the contested return, and within 24 hours receive the evidence of the objecting party. Within 24 hours, opposition to the objection may be made by the other party. Upon receipt of the evidence, the board of canvassers shall make a ruling thereon.
We find that the MBC did not err in refusing to consider the objections raised by private respondent during the canvass of the returns. Section 20 of R.A. 7166 applies only where the objection on the return being canvassed refers to issues proper in a pre-proclamation controversy. Under the Omnibus Election Code, pre-proclamation controversies are limited to: (1) challenges directed against the composition or proceedings of the board of canvassers (not the board of election inspectors), or (2) challenges related to election returns to which a party must have made specific objections.
In the case at bar, private respondent objected to the two returns on the ground "that the election returns are manufactured, fabricated or not authentic, considering that the election returns includes votes on ballots which are spurious, marked and invalid ballots." 23 The objection, as worded, did not challenge the returns, but was directed primarily at the ballots reflected in the returns. The issue of whether or not the ballots were manufactured, fabricated or not authentic involves an appreciation thereof. It is settled that issues relative to the appreciation of ballots cannot be raised in a pre-proclamation controversy. Appreciation of ballots is the task of the board of election inspectors, not the board of canvassers, and questions related thereto are proper only in election protests. 24
In the case of Abella v. Larrazabal, 25 we ruled that the objection raised before the board of canvassers that certain votes reflected in certain returns are not valid votes as they should not have been counted at all is not a valid ground for a pre-proclamation controversy. It is beyond the competence of the board of canvassers; neither is it a pre-proclamation issue, and the refusal of the board of canvassers to consider such objection or rule on the same is not erroneous.
Thus, in the case at bar, the MBC correctly ruled that private respondent’s objections are not proper in a pre-proclamation controversy. Thus, the procedure outlined in Section 20 of R.A. 7166 would not apply in the disposition of returns from precincts 16 and 20-A, inclusion of which was objected to by private Respondent
Private respondent’s recourse now is to proceed with the election contest pending before the RTC of Marawi City and there raise the issue relative to the alleged mistake in the appreciation of the ballots included in the contested election returns.
IN VIEW WHEREOF, the temporary restraining order issued by this Court against public respondent COMELEC directing it to desist from ruling on petitioner’s motion for reconsideration is made permanent. The June 28, 1996 COMELEC Resolution annulling petitioner’s proclamation is reversed and set aside, without prejudice to the final outcome and resolution of the election protest filed by private respondent before the RTC of Marawi City. No costs.
, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ.
1. G.R. No. 120823.
2. Rollo, pp. 152-161.
3. Decision, at pp. 6-7; Rollo, at pp. 157-158.
4. Id., at pp. 7-9; Rollo, at pp. 158-160.
5. Rollo, pp. 115-116.
6. Id., at p. 29.
7. Rollo, pp. 30-31.
8. Certificate of Canvass of Votes and Proclamation of the Winning Candidates for Municipal Officer, Rollo, p. 32.
9. See Resolution, dated June 28, 1996: Rollo, at p. 64.
10. February 13, 1996 Resolution.
11. Rollo, at pp. 35-51.
12. Id., pp. 61-69.
13. Id., pp. 70-75.
14. Rollo, pp. 22-23; All the Commissioners signed the Order although Commissioner Julio F. Desamito added a suggestion that the Motion for Reconsideration be resolved outrightly by the Commission.
15. Rollo, pp. 77-82.
16. Rollo, pp. 32-33.
17. Rollo, pp. 26-27.
18. During the pendency of this petition, petitioner received a telegram from COMELEC that on November 28, 1996, it shall promulgate its resolution on petitioner’s motion for reconsideration of the annulment of his proclamation. On November 27, petitioner moved for the issuance of a TRO. On even date, we issued the TRO (Rollo, p. 167) directing COMELEC to cease from proceeding with the resolution of petitioner’s motion for reconsideration.
19. Rollo, pp. 152-161.
20. Id., pp. 115-116.
21. Rollo, p. 29.
22. Id., pp. 30-31.
23. Rollo, pp. 30-31.
24. Sanchez v. COMELEC, 153 SCRA 67 .
25. 180 SCRA 509 .