EN
BANC
NURHUSSEIN
A. UTUTALUM,
Petitioner,
G. R. No. 84843-44
January 22, 1990
-versus-
COMMISSION
ON ELECTIONS
and ARDEN S. ANNI,
Respondents.
D
E C I S I O N
MELENCIO-HERRERA, J.:
Petitioner
Nurhussein A. Ututalum prays for the
reversal, on the ground of grave abuse of discretion, of the 19 April
and
31 August 1988 Resolutions of public respondent Commission on Elections
[COMELEC], in Cases Nos. SP 87-469 and 87-497 which declined to reject
the election returns from all the precincts of the Municipality of
Siasi,
Sulu, in the last 30 May 1987 congressional elections and to annul
respondent
Arden S. Anni's proclamation.
The undisputed
facts follow:
1. Petitioner
Ututalum and private respondent,
Arden S. Anni, were among the candidates in the last 30 May 1987
congressional
elections for the Second District of Sulu. 30 May was the date reset by
the COMELEC from the 11 May 1987 elections.cralaw:red
2. The election
returns from Siasi showed that
Petitioner Ututalum obtained four hundred and eighty-two [482] votes
while
respondent Anni received thirty-five thousand five hundred and
eighty-one
[35,581] votes out of the thirty-nine thousand eight hundred and one
[39,801]
registered voters [pp. 13, 187, Rollo]. If the returns of Siasi were
excluded,
Petitioner Ututalum would have a lead of 5,301 votes.cralaw:red
3. On 4 June
1987, during the canvass of votes,
Petitioner Ututalum, without availing of verbal objections, filed
written
objections to the returns from Siasi on the ground that they "appear to
be tampered with or falsified" owing to the "great excess of votes"
appearing
in said returns. He, then claimed that multiplying the 42 precincts of
Siasi by 300 voters per precinct, there should have been only 12,600
registered
voters and not 36,663 voters who cast their votes, thereby exceeding
the
actual authorized voters by 23,947 "ghost voters." [In his Petition,
however,
he admits that an error was committed since "in the May 30,1987
elections,
Siasi had 148 precincts"]. (p. 6, Rollo). He then prayed for the
exclusion
from the canvass of any election returns from Siasi.cralaw:red
4. On the same
day, 4 June, the Provincial Board
of Canvassers of Sulu dismissed petitioner's objections because they
had
been "filed out of time or only after the Certificate of Canvass had
already
been canvassed by the Board and because the grounds for the objection
were
not one of those enumerated in Section 243 of the Election Code" [See
Order,
p. 155, Rollo]. Also on the same day, 4 June 1987, petitioner filed
with
the Board of Canvassers his Notice of Appeal from said Resolution to
the
COMELEC.cralaw:red
5. On 5 June
1987, petitioner filed his first
petition with the COMELEC seeking a declaration of failure of elections
in the Municipality of Siasi and other mentioned municipalities; that
the
COMELEC annul the elections in Siasi and conduct another election
thereat;
and order the Provincial Board of Canvassers to desist from proclaiming
any candidate pending a final determination of the Petition.cralaw:red
6. On 8 June
1987, the Provincial Board of Canvassers
forwarded Petitioner's appeal as well as its Order dismissing the
written
objections to the COMELEC, with the request for authority to proclaim
Respondent
Anni as the winning candidate.cralaw:red
7. On 11 June
l987, in Case No. SPC 87-180, the
COMELEC resolved that there was no failure of elections in the 1st and
2nd Districts of Sulu except in specified precincts in the 1st District.cralaw:red
8. On 14 June
1987, the Sulu Provincial Board
of Canvassers proclaimed respondent Anni as the winner. He subsequently
took his oath of office and entered upon the discharge of its functions
in July 1987.cralaw:red
9. On 16 June
1987, petitioner filed a second
Petition with the COMELEC praying for the annulment of Respondent
Anni's
proclamation and for his own proclamation as Congressman for the Second
District of Sulu.cralaw:red
10. While those
two petitions were pending, one
Lupay Loong, a candidate for Governor of Sulu, filed a verified
Petition
with the COMELEC to annul the List of Voters of Siasi, for purposes of
the election of local government officials [docketed as SPC Case No.
87-624,
p. 9, Rollo]. This Petition was opposed by Respondent Anni. Petitioner
Ututalum was not a party to this proceeding.cralaw:red
On 16 January
1988, the COMELEC issued in said
SPC 87-624, a Resolution annulling the Siasi List of Voters "on the
ground
of massive irregularities committed in the preparation thereof and
being
statistically improbable", and ordering a new registration of voters
for
the local elections of 15 February 1988 [p. 41 Rollo].cralaw:red
Said Resolution
was affirmed by this Court in
Anni vs. COMELEC, G. R. No. 81398, 26 January 1988 [p. 43, Rollo]. A
new
Registry List was subsequently prepared yielding only 12,555 names [p.
228, Rollo].cralaw:red
11. Immediately
after having been notified of
the annulment of the previous Siasi List of Voters, Petitioner Ututalum
filed a supplemental pleading with the COMELEC entreating that such
annulment
be considered and applied by the Commission in resolving his two
Petitions
against Respondent Anni [p. 319, Rollo].cralaw:red
12. On 19 April
1988, in a consolidated Per Curiam
Resolution, the COMELEC [First Division] denied Petitioner Ututalum's
two
Petitions "for lack of merit, with the advise (sic) that he may
file an election contest before the proper forum, if so desired."
Declared
the COMELEC, inter alia:
While we believe that there was padding
of the
registry list of voters in Siasi, yet to annul all the votes in this
municipality
for purposes of the May 30, 1987 elections would disenfranchise the
good
or valid votes. As held in Espaldon vs. Comelec [G. R. No. L-78987,
August
25, 1987], this Commission is not the proper forum nor is it a proper
ground
in a pre-proclamation controversy, to wit:
Padded voter's list, massive fraud and
terrorism
is clearly not among the issues that may be raised in a
pre-proclamation
controversy. They are proper grounds for an election protest.
Petitioner
Ututalum is now before Us assailing the
foregoing Resolution. Petitioner contends that the issue he raised
before
the COMELEC actually referred to "obviously manufactured returns," a
proper
subject matter for a pre-proclamation controversy and, therefore,
cognizable
by the COMELEC, in accordance with Section 243 of the Omnibus Election
Code, which provides:
Sec 243. The following shall be the
issues that
may be raised in a pre-proclamation controversy:
(c) The election returns were prepared
under
duress, threats, coercion or intimidation or they are obviously
manufactured
or not authentic; [Emphasis supplied]
Further, that
the election returns from Siasi should
be excluded from the canvass of the results since its original List of
Voters had already been finally annulled; and, lastly, that there is no
need to re-litigate in an election protest the matter of annulment of
the
Registry List, this being already a "fait accompli."
It is Our considered view, however, that given
the factual setting, it can not justifiably be contended that the Siasi
returns, per se, were "obviously manufactured" and, thereby, a
legitimate
issue in a pre-proclamation controversy. It is true that in Lagumbay
vs.
COMELEC [L-2544, 31 January 1966, 16 SCRA 175], relied upon heavily by
Petitioner Ututalum, this Court ruled that the returns are obviously
manufactured
where they show a great excess of votes over what could have been
legally
cast. The Siasi returns however, do not show prima facie that
on
the basis of the old List of Voters, there is actually a great excess
of
votes over what could have been legally cast considering that only
36,000
persons actually voted out of the 39,801 voters. Moreover, the Lagumbay
case dealt with the "manufacture" of returns by those charged with
their
preparation as shown prima facie on the questioned returns themselves.
Not so in this case which deals with the preparation of the registry
list
of voters, a matter that is not reflected on the face of said returns.
Basically,
therefore, Petitioner's cause of action
is the padding of the Siasi List of Voters, which, indeed, is not a
listed
ground for a pre-proclamation controversy.
Sec. 243. Issues that may be raised
in
pre-proclamation
controversy.- The following shall be proper issues that may be
raised
in a pre-proclamation controversy:
(a) Illegal composition or proceedings of
the
board of canvassers;
(b) The canvassed election returns are
incomplete,
contain material defects, appear to be tampered with or falsified, or
contain
discrepancies in the same returns or in other authentic copies thereof
as mentioned in Sections 233, 234, 235 and 236 of this Code;
(c) The election returns were prepared
under
duress,
threats, coercion, or intimidation, or they are obviously manufactured
or not authentic; and
(d) When substitute or fraudulent
returns in
controverted
polling places were canvassed, the results of which materially affected
the standing of the aggrieved candidate or candidates.
As pointed out
in Espaldon vs. COMELEC, L-78987,
25 August 1987:
Padded voters' list, massive fraud, and
terrorism
are clearly not among the issues that may be raised in a
pre-proclamation
controversy. They are proper grounds for an election protest.
And as held in
the case of Bautista vs. COMELEC,
G. R. No. 78994, March 10, 1988:
The scope of pre-proclamation controversy
is
limited to the issues enumerated under Section 243 of the Omnibus
Election
Code. The enumeration therein of the issues that may be raised in a
pre-proclamation
controversy is restrictive and exclusive. [See also Sanchez vs.
COMELEC,
G. R. No. L-78461, 12 August 1987, 153 SCRA 67].
But Petitioner
insists that the new Registry List
should be considered and applied by the COMELEC as the legal basis in
determining
the number of votes which could be legally cast in Siasi. To allow the
COMELEC to do so retroactively, however, would be to empower it to
annul
a previous election because of the subsequent annulment of a questioned
registry in a proceeding where petitioner himself was not a party. This
cannot be done. In the case of Bashier vs. COMELEC [L-33692, 24
February
1972, 43 SCRA 238], this Court categorically ruled:
The subsequent annulment of the voting
list in
a separate proceeding initiated motu proprio by the Commission and in
which
the protagonists here were not parties, cannot retroactively and
without
due process result in nullifying accepted election returns in a
previous
election simply because such returns came from municipalities where the
precinct books of voters were ordered annulled due to irregularities in
their preparation.
Besides, the
List of Voters used in the 1987 Congressional
elections was then a validly existing and still unquestioned permanent
Registry List. Then, it was the only legitimate roster which could be
used
as basis for voting. There was no prior petition to set it aside for
having
been effected with fraud, intimidation, force, or any other similar
irregularity
in consonance with Section 145 of the Omnibus Election Code.[1]
That List must then be considered conclusive evidence of persons who
could
exercise the right of suffrage in a particular election [Abendante vs.
Relato, 94 Phil. 8; Medenilla vs. Kayanan, L-28448-49, 30 July 1971, 40
SCRA 154].
Moreover, the
preparation of a voter's list is
not a proceeding before the Board of Canvassers. A pre-proclamation
controversy
is limited to challenges directed against the Board of Canvassers, not
the Board of Election Inspectors [Sanchez vs. COMELEC, ante],
and
such challenges should relate to specified election returns against
which
petitioner should have made specific verbal objections. [Sec. 245,
Omnibus
Election Code; Pausing vs. Yorac, et al., G. R. No. 82700, 4 August
1988,
Endique vs. COMELEC, G.R. Nos. 82020-21, 22 November 1988] but did not.cralaw:red
That the padding
of the List of Voters may constitute
fraud, or that the Board of Election Inspectors may have fraudulently
conspired
in its preparation, would not be a valid basis for a pre-proclamation
controversy
either. For, whenever irregularities, such as fraud, are asserted, the
proper course of action is an election protest.cralaw:red
Such
irregularities as fraud, vote-buying and
terrorism are proper grounds in an election contest but may not as a
rule
be invoked to declare a failure of election and to disenfranchise the
greater
number of the electorate through the misdeeds, precisely, of only a
relative
few. Otherwise, elections will never be carried out with the resultant
disenfranchisement of the innocent voters, for the losers will always
cry
fraud and terrorism [GAD vs. COMELEC, G. R. No. 78302, May 26, 1987,
150
SCRA 665].cralaw:red
Petitioner
Ututalum's other submission is that
the Siasi returns should be excluded since the List of Voters on which
it was based has been conclusively annulled. He thus asks for the
application
of the rule on res judicata. This is neither possible. Aside
from
the fact that the indispensable requisites of res judicata,
namely,
identity of parties, of subject matter, and of cause of action are not
all present, the ruling desired would, as the COMELEC had opined,
disenfranchise
the good and valid votes in the congressional elections of 30 May 1987.cralaw:red
Finally, this
Petition has to fail if only on
the basis of the equally important doctrine enunciated in Padilla vs.
COMELEC
[L-68351-52, 9 July 1985, 137 SCRA 424] reiterated in Baldo vs. COMELEC
[G. R. No. 83205,14 July 1988] that:
Where the respondent had already been
proclaimed
as the elected representative of the contested congressional district
and
has long assumed office and has been exercising the powers, functions,
and duties appurtenant to said office, the remedy of the petitioner
lies
with the House of Representatives Electoral Tribunal. The
pre-proclamation
controversy becomes moot and academic.
and in the more
recent case of Antonino vs. COMELEC
[G. R. No. 84678, 29 March 1989]:
Where the winning candidates have been
proclaimed,
the pre-proclamation controversies cease. A pre-proclamation
controversy
is no longer viable at this point in time and should be dismissed. The
proper remedy thereafter is an election protest before the proper
forum.
Recourse to such remedy would settle the matter in controversy
conclusively
and once and for all.
Having arrived
at the foregoing conclusions, a discussion
of the other peripheral issues raised has been rendered unnecessary.
WHEREFORE, this
petition for certiorari is hereby
dismissed and the assailed Resolutions are affirmed. No costs.cralaw:red
SO ORDERED.cralaw:red
Fernan, C.J.,
Narvasa, Gutierrez, Jr.,
Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortés,
Griño-Aquino, Medialdea and Regalado, JJ., concur.cralaw:red
_________________________________
Endnote
[1]Sec. 145. Annulment of permanent lists of voters. - Any
Book
of Voters not prepared in accordance with the provisions of this Code
or
the preparation of which has been effected with fraud, bribery,
forgery,
impersonation, intimidation, force, or any other similar irregularity,
or which list is statistically improbable may, upon verified petition
of
any voter or election registrar or duly registered political party, and
after notice and hearing, be annulled by the Commission; Provided, That
no order, ruling or decision annuling a book of voters shall be
executed
within sixty days before an election. |