PHILIPPINE SUPREME COURT JURISPRUDENCE

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EN BANC

G.R. No. L-28539     March 30, 1968

SALVADOR Q. PEDIDO and THE FIRST MUNICIPAL BOARD OF CANVASSERS FOR PIODURAN, ALBAY Petitioners, vs. COMMISSION ON ELECTIONS, ATTY. GERTRUDO KALAMBAKAL, ATTY. BARBARA PORTUGAL, THE SECOND and THIRD MUNICIPAL BOARD OF CANVASSERS FOR PIODURAN, ALBAY, and PROTESTO PAVIA, Respondents.

SANCHEZ, J.: chanrobles virtual law library

Certiorari to annul the proclamation of respondent Protesto Pavia as Mayor-elect of the Municipality of Pioduran, Albay.chanroblesvirtualawlibrary chanrobles virtual law library

The present petition stems from facts following: chanrobles virtual law library

Candidates for Mayor of the Municipality of Pioduran in the November 14, 1967 elections were reelectionist petitioner Salvador Q. Pedido and respondent Protests Pavia.chanroblesvirtualawlibrary chanrobles virtual law library

On December 13, 1967, the municipal board of canvassers, composed of Vice Mayor Domingo P. Cadag, chairman, and Salazar Floranza, Edmundo Sequitin, Luis Rigamasbad, Ildefonso Nuñez, Bernardino Cortez, Mario Tarog and Justiniano Perez, members (hereinafter to be referred to as the first board), convened to canvass the election returns for said municipality. After that board had canvass 27 precincts, and "upon opening the 28th Election Return," the board found that "the said Election Return for Precinct No. 28 was colored white with serial number 439026, instead of the usual pink color with serial number 439011." Objection to said return was thereupon raised by board member Salazar Floranza. Respondent Barbara Portugal, local Comelec Registrar, intervened and asked the board to proceed with the counting of the questionable election return. The board finally sustained Salazar, resolved to send back to the board of inspectors of Precinct 28 the said election return "to explain the discrepancy." All the members left except member Ildefonso Nuñez.chanroblesvirtualawlibrary chanrobles virtual law library

On December 14, 1967, Portugal directed the first board to convene anew and continue with the canvass. The board refused. Whereupon, Portugal named a new board of canvassers (the second board) composed of Mauricio Casimiro, chairman; and Eugenio Nieva, Gabriel Acabado, Tito Pajes, Salvador Espinas and Lourdes Gnilo, members. This new board used the same tally sheet by verifying it with the election returns presented by the municipal treasurer. The second board completed its work.chanroblesvirtualawlibrary chanrobles virtual law library

On the same day - December 14 - the second board, together with Ildefonso Nuñez of the first board, signed both the tally sheet and the certificate of canvass and proclamation. Said certificate and the tally sheet show that respondent Protesto Pavia garnered 2,143 votes as against petitioner Salvador Q. Pedido who obtained 2,086 votes. The second board, with Nuñez, proclaimed Protesto Pavia Mayor-elect.chanroblesvirtualawlibrary chanrobles virtual law library

On December 19, 1967, respondent Commission on Elections (Comelec) - concerned with the delay in proclamation - resolved to direct that an attorney of its Law Department proceed immediately to Pioduran, Albay, and bring with him Comelec's copy of the election return from Precinct 28 for the use of the canvassing board of said municipality. The resolution explicitly directed said attorney "to supervise the canvass and proclamation with the authority to suspend recalcitrant members of the municipal board of canvassers and appoint their substitutes." Named as such supervising attorney was respondent Gertrudo Kalambakal.chanroblesvirtualawlibrary chanrobles virtual law library

Meanwhile on December 22, 1967, whose members were suspended by Election Registrar Portugal, convened again. The first board then claimed that the board of inspectors of Precinct 28 filed to explain the discrepancy in color and serial number of the election return from said precinct. This first board did not notify the municipal treasurer who was in possession of the election returns and the proclamation paper and tally sheets used during the canvass of December 13, 1967. Neither was the election registrar notified. The board's session was the election returns held in the house of petitioner and reelectionist Mayor Salvador Q. Pedido, without Comelec supervision, without Comelec supervision, without the election returns or any of the documents or any official forms being produced thereat by the municipal treasurer. The minutes of said board for that day (December 22) show that the canvassers just "agreed to take into consideration whatever figure or information contained in the questioned Election Return of Precinct No. 28," and "then contained to get the sum total of each candidate as per their noted record during the first meeting." ¹ The aforesaid first board prepared an improvised tally sheet and proclamation paper without seeing the election returns. The proclamation of petitioner Salvador Q. Pedido made by the first board on this date, December 22, is found in the last paragraph of the minutes of the board. This proclamation was merely based on the improvised tally which shows the following votes for Mayor: Petitioner Salvador Q. Pedido, 2,131 votes; respondent Protesto Pavia, 2,098 votes.chanroblesvirtualawlibrary chanrobles virtual law library

On December 27, 1967, Gertrudo Kalambakal, Comelec's Supervisor, conferred with the municipal treasurer, the election registrar, and the municipal secretary of Pioduran. On that day, Supervisor Kalambakal issued an order - subject to Comelec confirmation (a) setting aside the proclamation of December 14, 1967 made by the second board, because the same was without prior knowledge or confirmation by the Commission, and also because of the resolution of December 19, 1967 requiring the canvassing board to use in its canvass Comelec's copy of the election return for Precinct 28; (b) declaring "null and void" the proclamation made by the first board on December 22, 1967, for the reasons that there was lack of proper notice to the election registrar of Pioduran (in violation of Comelec's standing instructions to all canvassing boards) and also to the municipal treasurer who had all the election documents and paraphernalia to be use as basis for preparing the tally sheet and certificate of canvass and proclamation; and that the meeting of the first board was held in the Mayor's house.chanroblesvirtualawlibrary chanrobles virtual law library

That same day, Kalambakal directed the first board, which, convened on December 13 and December 22, to convene anew at 10:00 a.m. the next day, December 28, 1967, at the session hall. At 10:00 a.m. of that day, the canvassers absented themselves; only their chairman, Domingo P. Cadag, was present. The meeting of the board was postponed to 1:00 o'clock in the afternoon. At 2:00 p.m., again solely chairman Cadag appeared. Cadag vigorously objected to reconvening the board, insisted that the canvass and proclamation of December 22, 1967 made by the first board be respected.chanroblesvirtualawlibrary chanrobles virtual law library

Faced by the recalcitrance of the members of the first board to appear and the adamant attitude of the chairman, Kalambakal suspended all the members of the said first board. He substituted them by another board of canvassers (the third board) who are qualified voters, as recommended by the municipal treasurer, viz: Barbara Portugal, chairman; and Avelino Libag, Mrs. Loreto C. Portugal, Mrs. Fe A. Medrano, Osmundo Oyales, Abundio D. Luna, and Regalado Arranza, members.chanroblesvirtualawlibrary chanrobles virtual law library

On the same day, this third board canvassed the returns from all the precincts. However, they used Comelec's copy of the election return from Precinct 28, pursuant to Comelec's directive of December 19, 1967. The third board's certificate of canvass and proclamation of December 28, 1967 and the tally sheet show that respondent Protesto Pavia with 2,143 votes won over petitioner Salvador Q. Pedido who obtained 2,086 votes.chanroblesvirtualawlibrary chanrobles virtual law library

Given the discrepancy between the votes appearing in the first board's improvised tally of December 22, 1967 (Pedido: 2,131 votes; Pavia: 2,098 votes) and the third board's certificate of canvass and proclamation of December 28, 1967 (Pavia: 2,143 votes; Pedido: 2,086 votes) it will be of interest to examine the reason therefor.chanroblesvirtualawlibrary chanrobles virtual law library

There are three tally sheets: the tally sheet used in the December 13 canvass by the first board and also in the December 14 canvass by the second board; the improvised tally sheet of the first board on December 22; and the tally sheet prepared by the third board in the December 28 canvass.chanroblesvirtualawlibrary chanrobles virtual law library

The following tabulation, appearing on page 11 of Comelec's answer to the petition herein, explains how petitioner Salvador Q. Pedido was made to win the December 22 proclamation: ²

That the figures appearing in the tally sheets, Annexes 2 and 11 of Comelec's answer, in respect of Precincts 7 and 8 are correct, is confirmed by the fact that a photostat of Comelec's copy of the election returns for said Precincts 7 and 8 show the following: Precinct 7: "Pavia, Protesto, Two Hundred Seventeen - 217 votes"; "Pedido, Salvador, One Hundred Twenty-One - 121 votes"; and Precinct No. 8: "Pavia, Protesto, one hundred six - 106"; "Pedido, Salvador, seventy-three - 73." ³ chanrobles virtual law library

On December 30, 1967, Comelec's Supervisor, Gertrudo Kalambakal, returned to Manila, submitted to Comelec the certificate of canvass proclamation by the third board on December 28, 1967, and made his report. Incidentally, the tally sheet and certificate of canvass and proclamation made by the first board on December 22, 1967 was received by Comelec on January 4, 1968.chanroblesvirtualawlibrary chanrobles virtual law library

On December 30, 1967, petitioner Salvador Q. Pedido took his oath of office. It is reported, too, that on January 1, 1968, respondent Proteso Pavia also took his oath.chanroblesvirtualawlibrary chanrobles virtual law library

On January 5, 1968, Comelec resolved that the certificate of canvass and proclamation dated December 28, 1967 "be adopted as the valid certificate and that all acts taken by Atty. Gertrudo Kalambakal in connection with said canvass and proclamation are hereby confirmed." chanrobles virtual law library

Challenged here as null and void is the proclamation of respondent Protesto Pavia. The stress of petitioners' argument is that since petitioner Salvador Q. Pedido was already proclaimed by the first board on December 22, 1967, Comelec has "lost jurisdiction over his person and any question regarding his election." They submit that respondent Protesto Pavia's remedy is "an election protest before our courts," and that Comelec's resolution of January 5, 1468 "long after Pedido was proclaimed and had taken his oath," was issued "beyond its jurisdiction." chanrobles virtual law library

1. We are called upon to resolve the decisive question: Is the December 22, 1967 proclamation made by the board valid? For two reasons, the answer must be in the negative.