Philippine Supreme Court Jurisprudence > Year 2010 > February 2010 Decisions > [G.R. No. 190526 : February 17, 2010] SANDRA Y. ERIGUEL, PETITIONER, VS. COMMISSION ON ELECTIONS AND MA. THERESA DUMPIT-MICHELENA, RESPONDENTS.:

May a division of the Commission on Elections (COMELEC) elevate an appeal to the Commission en banc without first resolving it? And in connection with the said appeal, may the COMELEC en banc legally proceed with a fresh appreciation of the contested ballots without first ascertaining that the same have been kept inviolate? These are the two (2) important issues raised in this petition for certiorari filed under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure, as amended.

First, the facts.

Petitioner Sandra Eriguel (Eriguel) and private respondent Ma. Theresa Dumpit-Michelena (Dumpit) were mayoralty candidates in Agoo, La Union during the May 14, 2007 elections.

On May 18, 2007, after the canvassing and counting of votes, Eriguel was proclaimed as the duly elected mayor of the Municipality of Agoo. Eriguel received 11,803 votes against Dumpit's 7,899 votes, translating to a margin of 3,904 votes.

On May 28, 2007, Dumpit filed an Election Protest Ad Cautelam ^[1] before the Regional Trial Court (RTC) of Agoo, La Union contesting the appreciation and counting of ballots in 152 precincts in Agoo. Dumpit alleged that some of the ballots cast in favor of Eriguel were erroneously counted and appreciated in the latter's favor despite containing markings and identical symbols. Dumpit also alleged that while a number of ballots containing Eriguel's name were written by only one (1) person, the same were still counted in the latter's favor. ^[2]

Initially, the RTC dismissed the election protest on May 31, 2007 due to Dumpit's failure to specify the number of votes credited to the parties per proclamation as required by Section 11(c), Rule 2 of A.M. No. 07-4-15-SC. ^[3] The protest was, however, reinstated following Dumpit's filing of a motion for reconsideration.

Preliminary conference was then conducted on June 15, 2007. Revision of ballots followed shortly thereafter and was completed on July 18, 2007. ^[4] The results of the revision showed that Eriguel had 11,678 votes against Dumpit's 7,839 votes, or a lead of 3,839 votes.

On Dumpit's motion, the RTC conducted a technical examination of the ballots. Senior Document Examiner Antonio Magbojos of the National Bureau of Investigation (NBI) Questioned Documents Division conducted the technical examination for Dumpit, while Chief Inspector Jose Wacangan of the Regional Crime Laboratory Office No.1 of the Philippine National Police (PNP) conducted the examination for Eriguel. ^[5] Eight (8) other witnesses for Dumpit also testified during the trial. ^[6]

On December 7, 2007, the trial court issued a decision upholding Eriguel's proclamation. ^[7] The pertinent portion of the RTC decision reads:

A perusal of all the testimonies of the witnesses and all other evidences presented by the Protestant are not substantial enough to persuade the Judge of this Court to rule in favor of Protestant.

The Judge of this Court had gone over reading the Minutes of Voting and Counting of Votes but could not find any alleged irregularity recorded nor any protest entered in said Minutes of Voting and Counting of Votes.

x x x x

While witnesses (Ligaya Mutia, Elmer Tamayo, Melita Genove, and Ma. Victoria Japson) were presented and testified that there were irregularities or protests made but were not duly recorded by the BEI Chairman either intentionally or unintentionally, still the same did not or is not enough to overcome such presumption. Granting without concluding (sic) that such were the case, their testimonies are merely confined to the precincts in which they served as poll watcher[s] and does not affect other precincts where the conduct of the election were generally peaceful. The same is not enough to overcome the margin of more than three thousand votes lead of the Protestee.

The Judge had even observed in the course of his scanning the Minutes of Voting and Counting of Votes that the Protestant or the Political Party to which she belongs has four (4) watchers in some precincts, three (3), two (2) and one (1) in other precincts. In other words, the Protestant or KAMPI had a number of watchers who were in the voting precincts during the May 14, 2007 elections. Poll watchers are the eyes and ears of the candidates. They are trained/oriented (or supposed to be) in such a way that they would be able to perform their tasks of seeing to it that the votes cast for the candidate they are serving will be counted and to file a protest should any sign of irregularity be observed.

Mr. Antonio Magbojos gave his expert handwriting testimony on the entries written on the ballots for the Protestee, however, these are mere opinions and speculations which were not substantiated by any strong, direct and convincing evidence on how such entries were written by one person for a particular set or group of ballots in a particular precinct. ^[8]

Unsatisfied with the findings, Dumpit appealed to the COMELEC. The case was docketed as EAC No. A-01-2008, and was initially assigned to the Special Second Division composed of Presiding Commissioner Rene V. Sarmiento and Commissioner Nicodemo T. Ferrer. Commissioner Ferrer, however, decided to inhibit himself. This prompted Presiding Commissioner Sarmiento to issue an Order dated July 22, 2009 elevating the appeal to the Commission en banc. ^[9] The transfer of the case to the Commission en banc was apparently made pursuant to Section 5(b), Rule 3 of the COMELEC Rules of Procedure, which states,

Sec. 5. Quorum; Votes Required. - (a) x x x

(b) When sitting in Divisions, two (2) Members of a Division shall constitute a quorum to transact business. The concurrence of at least two (2) Members of a Division shall be necessary to reach a decision, resolution, order or ruling. If this required number is not obtained, the case shall be automatically elevated to the Commission en banc for decision or resolution. ^[10]

Thereafter, the Commission en banc proceeded to conduct a fresh appreciation of the contested ballots. ^[11] On December 9, 2009, after an exhaustive appreciation of all the contested ballots, ^[12] the Commission en banc promulgated a resolution nullifying 3,711 ballots cast in favor of Eriguel after finding the same to have been written by only one (1) or two (2) persons. The following figures were thus derived: ^[13]

	Dumpit	Eriguel
Total number of votes per physical count after revision	7,839	11,678
ADD claimed/credited ballots	35	41
LESS ballots INVALIDATED after appreciation	14	4,026
Total No. of votes AFTER Comelec appreciation	7,860	7,693

On this note, the Commission en banc set aside the RTC's decision and declared Dumpit as the duly elected mayor of Agoo, La Union, for having garnered 167 more votes than Eriguel. ^[14]

Aggrieved, Eriguel now comes before us via a petition for certiorari.

Eriguel essentially raises the following two issues: (1) procedurally, whether the Special Second Division of the COMELEC gravely abused its authority when it automatically elevated Dumpit's appeal to the Commission en banc after only one commissioner was left to deal with the case; and (2) substantively, whether the COMELEC en banc's fresh appreciation of the contested ballots without first ascertaining the integrity thereof violated the doctrine enunciated in Rosal v. Commission on Elections. ^[15]

We find the petition meritorious.

I. Automatic elevation of the appeal to the Commission en banc is invalid

The COMELEC, in the exercise of its quasi-judicial functions, is bound to follow the provision set forth in Section 3, Article IX-C of the 1987 Constitution, which reads:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. ^[16]

It therefore follows that when the COMELEC is exercising its quasi-judicial powers such as in the present case, the Commission is constitutionally mandated to decide the case first in division, and en banc only upon motion for reconsideration. ^[17]

Indeed, it is a basic doctrine in procedural law that the jurisdiction of a court or an agency exercising quasi-judicial functions (such as the COMELEC) over the subject-matter of an action is conferred only by the Constitution or by law. Jurisdiction cannot be fixed by the agreement of the parties; it cannot be acquired through, or waived, enlarged or diminished by, any act or omission of the parties. ^[18] Neither can it be conferred by the acquiescence of the court, ^[19] more particularly so in election cases where the interest involved transcends those of the contending parties.

This being so, the Special Second Division of the COMELEC clearly acted with grave abuse of discretion when it immediately transferred to the Commission en banc a case that ought to be heard and decided by a division. Such action cannot be done without running afoul of Section 3, Article IX-C of the 1987 Constitution. Instead of peremptorily transferring the case to the Commission en banc, the Special Second Division of COMELEC, should have instead assigned another Commissioner as additional member of its Special Second Division, not only to fill in the seat temporarily vacated by Commissioner Ferrer, but more importantly so that the required quorum may be attained.

Emphasis must be made that it is the COMELEC division that has original appellate jurisdiction to resolve an appeal to an election protest decided by a trial court. Conclusively, the Commission en banc acted without jurisdiction when it heard and decided Dumpit's appeal.

Any one (1) among the parties should have moved for a reconsideration of the July 22, 2009 Order before the Special Second Division since what was involved was an interlocutory order. ^[20] The Special Second Division may, however, opt to refer the resolution of the motion to the Commission en banc, but only upon a unanimous vote by all of the Division members. ^[21] If the motion is still denied by the COMELEC en banc, the aggrieved party may thereafter seek recourse to this Court via a petition for certiorari under Rule 65. ^[22]

II. The COMELEC cannot proceed to conduct a fresh appreciation of ballots without first ascertaining the integrity thereof

The records of the case also indicate that the COMELEC en banc proceeded to conduct a fresh appreciation of the contested ballots without first ascertaining whether the ballots to be recounted had been kept inviolate. This lackadaisical and flawed procedure on the part of the COMELEC is further highlighted by the fact that as early as August 10, 2009, COMELEC Chairman Jose A.R. Melo has already issued an order to the Commission's Law Department to investigate why some election returns in La Union were missing, ^[23] while some of the ballot boxes appeared to have been tampered with. ^[24]

On December 4, 2009, Eriguel even filed an omnibus motion expressing concern over the discovery and praying that she be informed of the status of the investigation in order to ensure that the ballots being appreciated by the Commission at that time were still the same ballots that had been cast by the electorate of Agoo. ^[25] The motion, however, remained unresolved as the Commission en banc proceeded with the appreciation of ballots and, eventually, promulgated the assailed Resolution five (5) days thereafter.

In Rosal, ^[26] we painstakingly explained the importance of ascertaining the integrity of the ballots before conducting a revision. There, we said:

The purpose of an election protest is to ascertain whether the candidate proclaimed elected by the board of canvassers is the true and lawful choice of the electorate. Such a proceeding is usually instituted on the theory that the election returns, which are deemed prima facie to be true reports of how the electorate voted on election day and which serve as the basis for proclaiming the winning candidate, do not accurately reflect the true will of the voters due to alleged irregularities that attended the counting of ballots. In a protest prosecuted on such a theory, the protestant ordinarily prays that the official count as reflected in the election returns be set aside in favor of a revision and recount of the ballots, the results of which should be made to prevail over those reflected in the returns pursuant to the doctrine that "in an election contest where what is involved is the number of votes of each candidate, the best and most conclusive evidence are the ballots themselves."

It should never be forgotten, though, that the superior status of the ballots as evidence of how the electorate voted presupposes that these were the very same ballots actually cast and counted in the elections. Thus, it has been held that before the ballots found in a [ballot] box can be used to set aside the returns, the court (or the Comelec as the case may be) must be sure that it has before it the same ballots deposited by the voters. ^[27]

The Rosal doctrine finds equal, if not more, importance in the instant case where the proceeding adopted by the COMELEC involved not only a revision of ballots, but a fresh appreciation thereof.

Thus, however exhaustive the COMELEC's findings may appear to be, the same is still rendered void due to its lack of jurisdiction and its failure to ensure that the integrity of the ballots has been preserved prior to conducting a fresh appreciation thereof.

Under such circumstances, the question as to who between the parties was duly elected mayor of Agoo, La Union still cannot be settled without conducting proper proceedings in the COMELEC. Therefore, we are left with no other recourse but to set aside the assailed Resolution for being both procedurally and substantively infirm.

Accordingly, the COMELEC is hereby ordered to re-raffle and assign the case to one (1) of its divisions, and to issue an order that an additional member be appointed to the assigned division should it later on be determined that the required quorum still could not be attained. Since the custody of the ballot boxes has already been transferred to the COMELEC, the COMELEC division to which the case shall be assigned must, prior to proceeding with a fresh appreciation of the ballots, determine whether the ballot boxes for the Municipality of Agoo sufficiently retained their integrity as to justify the conclusion that the ballots contained therein could be relied on as better evidence than the election returns. The COMELEC division shall also determine which ballot boxes in the said municipality were in such a condition as would afford reasonable opportunity for unauthorized persons to gain unlawful access to their contents. Should it be found that there are such ballot boxes, the ballots contained therein shall be held to have lost all probative value and should not be used to set aside the official count in the election returns, following our ruling in Rosal. ^[28]

We likewise remind the COMELEC to be more prudent and circumspect in resolving election protests by following the proper procedure, whether in the exercise of its original or appellate jurisdiction, in order not to frustrate the true will of the electorate. Otherwise, the very foundation of our democratic processes may just as well be easily and expediently compromised.

WHEREFORE, the instant petition is GRANTED. The Resolution dated December 9, 2009 of the Commission on Elections en banc in EAC No. A-01-2008 is hereby declared NULL and VOID. The Commission on Elections is hereby DIRECTED to re-raffle and assign the case to one (1) of its divisions, and to proceed with the resolution of the case with utmost dispatch. To this end, it shall:

	(1)	identify which of the ballot boxes were otherwise preserved with such substantial compliance with statutory safety measures as to preclude reasonable opportunity for tampering with their contents. The ballots from these precincts shall be deemed to have retained their integrity in the absence of evidence to the contrary and the Commission on Elections may consider them in the recount; and
	(2)	ascertain which of the ballot boxes were found in such a condition as would afford reasonable opportunity for unauthorized persons to gain unlawful access to their contents. The Commission on Elections shall exclude from the recount the ballots from these boxes and shall rely instead on the official count as stated in the election returns.

The status quo ante orders issued by this Court on December 28, 2009 and January 4, 2010 are hereby MAINTAINED.

SO ORDERED.

Puno, C.J., Carpio, Corona, Carpio Morales, Nachura, Leonardo-De Castro, Brion, Bersamin, Del Castillo, Abad, Perez, and Mendoza, JJ., concur.
Velasco, Jr., J., in the result.
Peralta, J., on official leave.

Endnotes:

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^[1] Rollo, pp. 408-422. Docketed as EPC No. A-16.

^[2] Id. at 415-416.

^[3] Sec. 11(c), Rule 2 of the Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials, or The Election Contest Rules which took effect on May 15, 2007, reads:

Rule 2. ELECTION CONTESTS

x x x x

SEC. 11. Contents of the protest or petition. - An election protest or petition for quo warranto shall specifically state the following facts:

x x x x

(c) the number of votes credited to the parties per proclamation.

^[4] Rollo, p. 439.

^[5] Id. at 439-440.

^[6] Id. at 443-444.

^[7] Id. at 459-460. The dispositive portion of the December 7, 2007 RTC Decision reads:

^[8] Id. at 446-450.

^[9] Id. at 464. The July 22, 2009 Order of the Special Second Division of COMELEC reads:

Considering that the necessary majority can not be had in the resolution of this case, the same, together with the records thereof, is hereby elevated to the Commission en banc.

SO ORDERED.

^[10] Id. at 56.

^[11] Id. at 57.

^[12] Id. at 60-201.

^[13] Id. at 201.

^[14] Id. at 201-202. The dispositive portion of the December 9, 2009 COMELEC en banc Resolution reads:

^[15] G.R. Nos. 168253 & 172741, March 16, 2007, 518 SCRA 473.

^[16] Emphasis supplied.

^[17] Baytan v. Commission on Elections, G.R. No. 153945, February 4, 2003, 396 SCRA 703, 716; and Canicosa v. Commission on Elections, G.R. No. 120318, December 5, 1997, 282 SCRA 512, 521.

^[18] Regalado, Vol. I, Remedial Law Compendium, 9^th revised edition, pp. 11-12.

^[19] Id. at 12.

^[20] Sec. 5 (c), Rule 3 of the COMELEC Rules of Procedure reads:

^[21] Sec. 2, Rule 3 of the COMELEC Rules of Procedure reads:

^[22] Supra, note 15 at 486.

^[23] Rollo, p. 570.

^[24] Id. at 566-567.

^[25] Id. at 28.

^[26] Supra note 15.

^[27] Id. at 487-488. Emphasis supplied.

^[28] Id. at 498.