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EN BANC

[G.R. No. 122872. September 10, 1997]

PENDATUN SALIH, Petitioner, v. COMMISSION ON ELECTIONS OMARHASSIM ABDULMUNAP and FAWSI ALONZO, Respondents.

D E C I S I O N

HERMOSISIMA, JR., J.:

In the May, 1995 elections, petitioner Pendatun Salih, private respondent Fawzi Alonzo and private respondent Omarhassim Abdulmunap ran as candidates for the position of Mayor of the Municipality of Tandubas, Province of Tawi-Tawi. Five of the election returns from the said municipality were contested by the contending parties. The Municipal Board of Canvassers of Tandubas, Tawi-Tawi ruled, however, to canvass these contested election returns on the ground that no sufficient proof was proffered to warrant their exclusion as defective or fraudulent returns. Just the same, said board did not proclaim any winner, its ruling having been raised to the Commission on Elections (hereafter, COMELEC) on appeal and the results of the elections being affected by the inclusion or exclusion of the questioned returns. The Second Division of said commission, on appeal, ruled to include three of the questioned election returns and to exclude the remaining two returns. As a result, the Municipal Board of Canvassers of Tandubas, Tawi-Tawi proclaimed petitioner as winner of the mayoralty elections in the said municipality. Such proclamation was, however, nullified by the COMELEC en banc. Said commission en banc also ordered the inclusion of the two election returns earlier excluded by the Second Division, and directed the Municipal Board of Canvassers of Tandubas to reconvene, complete the canvass by including said two election returns and accordingly proclaim the winning candidate for Mayor of the said municipality.

Threatened to be unseated as Mayor of Tandubas, Tawi-Tawi on the strength of the aforementioned decision of the COMELEC en banc, petitioner has come to us via this petition for certiorari under Rule 65 seeking the nullification of the said en banc decision¹ and a declaration of his status as the duly elected Mayor of Tandubas, Tawi-Tawi.

The antecedents of this case are not in dispute.

The present controversy traces its origin to three appealed cases, docketed as SPC No. 95-234, SPC No. 95-237 and UND No. 95-232, the subject of all of which was the ruling of the Municipal Board of Canvassers of Tandubas, Tawi-Tawi to include five (5) contested election returns from five precincts, namely, Nos. 10, 10-A, 16, 21 and 21-A. These three cases were resolved by the Second Division of the COMELEC in its Resolution dated June 28, 1995. Said Second Division outrightly dismissed UND No. 95-232 for failure to pay docket fees while disposing of the two other appealed cases in this wise:

x x x [T]he Commission (Second Division) x x x shall limit itself to the resolution of the five (5) determined contested election returns coming from Precincts No. 10, 10-A, 16, 21 and 21-A.

The Commission (Second Division), also notes that one of the above appeals, namely, that raised by Petitioner/Appellant Omarhassim Abdulmunap, has been docketed as UND No. 95-232. There is no showing that the petitioner therein remitted the required docket/filing fees for initiating the appeal. This Division is therefore constrained to order the outright dismissal of the said UND No. 95-232 by reason of failure to pay the mandated filing fees under Sec. 2(a) and (b) of Rule 40, Comelec Rules of Procedure.

The Commission (Second Division) will proceed to resolve the two (2) remaining validly elevated appeals in SPC No. 95-234 and SPC No. 95-237.

SPC No. 95-234

This appeal refers to the contested election returns from Precinct 21 and 21A of Tandubas.

In Precinct 21 (involving Election Return No. 120612), the Ruling on appeal is one which rejected the objection NOT to canvass the election return from this precinct. The ruling states: `Petitioner failed to indicate either to include or exclude the election return for canvassing, and that there is lack of factual basis. The objection itself does not establish whether it seeks to include or exclude the return of Precinct No. 21. The document appears to be an `Opposition to the Objection, and one cannot ascertain the objectors intention. By reason of the vagueness of the document the Canvass Board was certainly correct when it ruled that there was failure `to indicate... either to include or exclude the election returns and therefore the ruling to canvass the return should be sustained.

x x x

In regard to Precinct No. 21-A (Election Return No. 120614), the Municipal Canvass Board also ruled to canvass the results of the same for the reason that there appears to be no showing that the return concerned was spurious, falsified, and the results thereof, statistically improbable. In fact, no supporting evidence was adduced and formally offered by the objector to give credence to his claims, except the self-serving joint affidavit also of objectors very own watchers. Absent strong, clear and convincing evidence there can be no legal basis to reverse the findings of the canvass board. The results for Precinct No. 21-A must therefore be likewise included and canvassed as ruled.

SPC No. 95-237

In reference to Precinct No. 10 (Election Return No. 120601), there were several objections interposed, not only by appellant Salih but also by the other candidate Abdulmunap, among which were: That there was no actual voting in the said precinct, or if ever, there was minimal attendance of voters, and tat the election return itself was prepared by the followers of candidate Alonzo. Also, the returns were obviously manufactured, or were falsified, and there was absent the required data as to the number of voters who actually voted.

Reviewing the records elevated to this Commission, and without necessarily relying on the allegations and evidence of the oppositors Salih and Abdulmunap, the Commission finds that there are clear indications that the election return in the precinct is not reflective of the actual voting thereat as shown by the fact that there were 602 voters who appeared to have case their ballots for the gubernatorial candidates Salih and Matba x x x while the registered voters of the said precincts, based on Comelec records number only 586 voters. The existence of excess votes do manifest on its face the anomalous nature of the election returns, and convey the manufacture and fabrication thereof. (Tagoranao vs. Comelec, 22 SCRA 978)

Considered in the light of the other anomalies in the other precinct in the same barangay of SAPA, which is admittedly the home barangay of candidate Alonzo, Precinct No. 10-A, there is every reason to conclude that the narrations and objections of the other candidates to the inclusion of the above return [have] strong and valid basis. The election return from Precinct 10 cannot therefore be canvassed as a valid return, and should be excluded. The ruling of the canvass board allowing the canvass of the said return is therefore reversed.

As regards Precinct No. 10-A (Election Return No. 120602), on record are numerous objections interposed on the inclusion of this return. As in Precinct No. 10, the same was allegedly prepared despite the fact that there was no voting there, and that said return was prepared by the followers of candidate Alonzo, giving him an overwhelming lead. Further, there were reliable reports that one entire PAD of official ballots was removed from the precinct and filled up by unauthorized individuals, and that the original chairman left the polling place and never returned to complete the work. Additionally, there were the undisputed findings, admitted even by the BEI members that the election return was NOT signed, but only thumbmarked by them. Then there is the abnormally high turnout of registered voters where 544 out of the 546 registered voters were supposed to have cast their ballots.

The Commission finds that the evidence of abnormality and irregularities in this precinct is quite obvious, and thus, affects the validity and legitimacy of the results therein. The lack of signature is a strong evidence of a falsified or a return that is not authentic. The fact that there were thumbmarks thereon cannot dispense with the requirement of signatures, especially where there is NO showing that the thumbmarks do or do not belong to the BEI members.

One other very glaring anomaly admitted under oath by the BEI members themselves as contained in their joint affidavit is their declaration that `Election Return No. 120602 of Precinct No. 10-A was prepared and worked AFTER the counting of the ballots.... Such a process is in direct contravention of the mandatory requirement that the election return MUST be prepared SIMULTANEOUSLY with the counting of the ballots x x x.

The unequivocal ADMISSION OF PREPARING THE ELECTION RETURN FOR PRECINCT 10-A AFTER THE COUNTING is the best evidence that the said election return is anomalous and was prepared in direct violation of law. Since the admission was executed under oath by the BEI themselves, taken with the totality of circumstances surrounding the preparation of the election returns, this election return from Precinct No. 10-A cannot be relied upon and should be regarded as fictitious or manufactured and excluded from the canvass of the votes cast for the different candidates in the Municipal[ity] of Tandubas.

x x x

In view hereof, the Commission has no alternative but to conclude that the questioned return is illegal and cannot be considered for purposes of canvass. The ruling of the Canvass Board must have to be, as it is hereby, reversed.

Precinct No. 16 (Election Return No. 120608) -- The nature of the objection interposed on this return is such that there is extreme difficulty in accepting the same as truthful in the absence of supporting evidence. The claim that the ballot box of this precinct was snatched, opened, and the ballot therein filled up by other persons, cannot be admitted in the absence of clear and convincing evidence. On its face, the election return for this precinct appears to be regular, such that there is no valid basis to overrule the findings of the Municipal Board of Canvassers to include the same in the canvass.²chanroblesvirtuallawlibrary

The Second Division of the COMELEC thus directed the Municipal Board of Canvassers of Tandubas to complete the canvass of the returns by including those from Precinct Nos. 16, 21, and 21-A while excluding those from Precinct Nos. 10 and 10-A.

On June 30, 1995, said board proclaimed petitioner as winner of the electoral contest for the position of Mayor of Tandubas, Tawi-Tawi, petitioner having been accredited with the highest number of votes among all the mayoralty candidates.

On the same day that petitioner was proclaimed as Mayor, private respondent Abdulmunap filed a Motion for Reconsideration and Suspension of Proclamation.³ Also on the same day, private respondent Alonzo filed a Motion for Reconsideration⁴ praying for the reversal and setting aside of the resolution of the Second Division.

On June 29, 1995, the COMELEC en banc promulgated an Omnibus Resolution on Pending Cases items 1, 2 and 3 of which read:

1. All cases which were filed by private parties without timely payment of the proper filing fee are hereby dismissed;

2. All cases which were filed beyond the reglementary period or not in the form prescribed under appropriate provisions of the Omnibus Election Code, Republic Acts No. 6646 and 7166 are hereby likewise dismissed;

3. All other pre-proclamation cases which do not fall within the class of cases specified under paragraphs (1) and (2) immediately preceding shall be deemed terminated pursuant to Section 16, RA 7166. Hence, all the rulings of boards of canvassers concerned are deemed affirmed. Such boards of canvassers are directed to reconvene forthwith, continue their respective canvass and proclaim the winning candidates accordingly, if the proceedings were suspended by virtue of pending pre-proclamation cases x x x.⁵chanroblesvirtuallawlibrary

Pursuant to the aforecited omnibus resolution of the commission en banc regarding the dismissal of pending pre-proclamation cases, the Second Division of the COMELEC, in an Order dated July 11, 1995,⁶ deemed as terminated SPC No. 95-234, UND No. 95-232 and SPC No. 95-237. This, notwithstanding the fact that private respondents promptly filed their respective motions for reconsideration of the Resolution of the Second Division dated June 28, 1995.

On July 13, 1995, private respondent Alonzo filed a Motion to Reconsider the order Dated July 11, 1995 and Motion to Elevate En Banc the Motion for Reconsideration Dated June 30, 1995.⁷chanroblesvirtuallawlibrary

On July 21, 1995, the Second Division of the COMELEC issued an Order⁸ in SPC No. 95-237 whereby the aforementioned motions filed by private respondent Alonzo were certified and ordered elevated to the COMELEC en banc for appropriate action.

On the same date, July 21, 1995, petitioner filed an Ex-Parte Manifestation before the Second Division of the COMELEC. In said manifestation, petitioner informed the commission that private respondent Abdulmunap had formally filed an election protest case before the Regional Trial Court of Bongao, Tawi-Tawi.⁹ Acting on such manifestation, the Second Division issued an Order dated August 4, 1995 noting said manifestation and referring the same to the COMELEC en banc insofar as SPC No. 95-237 is concerned considering that the said case had already been, on July 21, 1995, elevated to the commission en banc.

On December 15, 1995, the COMELEC en banc promulgated its decision in SPC No. 95-237 reversing the Second Division and ordering the inclusion of the contested election returns from Precinct Nos. 10 and 10-A. The commission en banc reversed the Second Division in this manner:

Peripherals aside, this case boils down to one proposition. Whether or not to include the results of Precinct Nos. 10 and 10-A in the canvass.

The Commission (Second Division) was correct in dismissing the appeals/petitions in SPC No. 95-234 and UND No. 95-232, upholding the ruling of the MBC in the former and for failure to pay the requisite fee in the latter. We have, however, our misgivings insofar as Precinct Nos. 10 and 10-A are concerned.

The assailed resolution ruled to exclude the returns from these precincts premised on the findings `that there was no actual voting in the said precinct, or, if ever, there was minimal attendance of voters, and that the election return itself was prepared by the followers of candidate Alonzo. Also, the returns were obviously manufactured or were falsified, and there was absent the required data as to the number of voters who actually voted in the case of Precinct No. 10 x x x and the alleged missing pad of official ballots and the declaration of the BEI of Precinct No. 10-A x x x.

These conclusions fall short of the criteria established for the proper and strict appreciation of the evidence on record. The affidavits executed by the watchers of petitioner Salih, as heretofore mentioned, were misleading and did not meet the standards for appropriate consideration (Pimentel, Jr. vs. COMELEC, 140 SCRA 136). In short, there were no specific evidence to prove the abnormality and irregularities allegedly committed in Precinct No. 10-A. Neither is there basis to rule that there were excess votes in Precinct No. 10 because the total registered voters for this precinct is 586 and the combined votes of the four (4) mayoralty candidates is only 562 (Doruelo vs. COMELEC, 133 SCRA 376). Moreover, the assertion against the BEI of Precinct 10-A is belied by the minutes of the Board and to attribute wrongdoing in the preparation of the election return for this precinct is a misinterpretation of the import of their joint affidavit which is but an error in semantics.

Going back to the Resolution of June 28, 1995 and the Order of July 11, 1995, it appears that the Commission (Second Division) superseded its own directive to exclude Precinct Nos. 10 and 10-A by considering SPC No. 95-237 TERMINATED thereby affirming the ruling of the MBC to include in the canvass the election returns from these two precincts. In essence, We are merely confirming this rectification.

On the other hand, the ex parte manifestation of petitioner Salih, through counsel, filed on August 4, 1995 `that therefore, the previous MOTION FOR RECONSIDERATION OF THE RESOLUTION PROMULGATED ON JUNE 28, 1995 dated June 30, 1995 is not and must not be included in the matters ELEVATED to the Commission En Banc, the case having been terminated at the Division level, is rendered moot and academic by the en banc hearing of the motion on August 24, 1995.

The most telling argument against petitioners perorations is the fact that he was proclaimed by the MBC of Tandubas during the pendency of a motion for reconsideration filed by respondent Alonzo in SPC No. 95-237 and petitioner Abdulmunap in SPC Nos. 95-234 and 95-237, it appearing that the results on Precinct Nos. 10 and 10-A would affect the election (Section 245, Omnibus Election Code).

All told, We find no solid nor convincing evidence to warrant the exclusion of the election returns of Precinct Nos. 10 and 10-A from the canvass and hereby ORDER their inclusion in the canvass.

x x x

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES to annul the proclamation of Pendatun Salih x x x as mayor x x x of Tandubas, Tawi-Tawi x x x for being based on an incomplete canvass and during the pendency of a motion for reconsideration timely filed (Tatlonghari vs. COMELEC, July 31, 1991, 199 SCRA 849; Mentang vs. COMELEC, 229 SCRA 666).

ACCORDINGLY, the Municipal Board of Canvassers of Tandubas is DIRECTED to bring to the Commission, Manila, all the election records and documents in this case including the Statement of Votes by Precincts and the Election Returns of Precinct Nos. 10 and 10-A, and turnover said election records and documents to the newly-constituted Board of Canvassers x x x which shall immediately RECONVENE, complete the CANVASS by including the results in Precincts 10 and 10-A and thereafter, PROCLAIM the winning candidates for Mayor x x x of the said Municipality.

It is significant to state at this juncture that Precinct Nos. 10 and 10-A are bailiwicks of private respondent Alonzo. Predictably, therefore, Petitioner, foreseeing his impending ouster upon the completion of the canvass which is now to include the election returns from private respondent Alonzos bailiwicks, as ordered by the COMELEC en banc, filed the instant petition.

On December 22, 1995, we issued a Temporary Restraining Order enjoining the COMELEC from enforcing and/or implementing its en banc decision herein assailed during the pendency of this case.

Petitioner mainly contends that the assumption by the COMELEC en banc of jurisdiction over SPC No. 95-237, after the same had been deemed terminated by the Second Division of the same commission in a duly promulgated resolution, is tainted with grave abuse of discretion. As an indicia of such grave abuse of discretion, petitioner points out that all three commissioners constituting the Second Division, have cast their dissenting votes to the majority decision of the COMELEC en banc.

We, however, do not subscribe to petitioners contentions. The records clearly bear out that the order issued by the Second Division on the strength of which SPC No. 95-237 was deemed terminated, came in the heels of private respondents timely filed motions for reconsideration. There was thus pending at least two motions for reconsideration of the decision of the Second Division ordering the exclusion of the election returns from private respondent Alonzos bailiwicks that were Precinct Nos. 10 and 10-A. The pendency of such motions rendered ineffective the resolution of the Second Division ordering the dismissal of SPC No. 95-237, considering the inherent contradiction in such a situation involving pending motions for reconsideration in a case that was being dismissed without the issuance of any order finally disposing of the pending motions. The right of private respondents to ask for reconsideration of a decision that aggrieved them, cannot be defeated by the mere expediency or careless measure of ipso facto terminating the case without finally resolving the pending motions for reconsideration. Rather than find the COMELEC en banc guilty of grave abuse of discretion, we find the Second Division of the same commission to have exceeded its powers in terminating an appealed case in which motions for reconsideration were pending and remain unacted upon.

This petition is dismissible for the reasons above stated. However, the question as to whether or not to include the election returns from Precinct Nos. 10 and 10-A, ought to be categorically answered to foreclose any further debate on the matter. We shall therefore proceed to rule on this question.

We agree with the COMELEC en banc in having included the election returns from Precinct Nos. 10 and 10-A in the canvassing of the votes cast during the May, 1995 elections for the position of Mayor of Tandubas, Tawi-Tawi.

The Second Division of the COMELEC excluded the returns from Precinct Nos. 10 and 10-A on the grounds that no actual voting in the said precincts had taken place; that if there had been actual voting, there was minimal attendance of voters; that the election returns were prepared by the followers of private respondent Alonzo; that a missing pad of official ballots was missing; that for these reasons, the election returns in question were obviously manufactured or falsified, and that said returns lacked the data as to the number of voters who actually voted.

On top of all these findings, however, the Second Division did not make any findings of actual physical alterations or other forms of defects on the face of the questioned election returns. The conclusion that they are manufactured, falsified or fraudulent necessitates the premise that no actual voting occurred and/or that the followers of private respondent Alonzo and not the members of the Board of Election Inspectors, were the persons who prepared the questioned election returns. Even the finding of the Second Division to the effect that the returns lacked data as to the actual number of voters, is imperatively predicated on the premise that there had not been in fact such voting as the returns reflect on their face or that there had in fact been minimal voting which was not, however, reflected on the questioned returns, the same having been prepared by private respondent Alonzos followers.

In other words, the Second Division of the COMELEC believed that sham voting had taken place in Precinct Nos. 10 and 10-A and considered the election returns therefrom a product of fraud perpetrated by private respondent Alonzo in his bailiwicks.

The records of this case, however, are utterly wanting of evidence of such sham and fraudulent voting. The Second Division of the COMELEC largely relied on the affidavit executed by the members of the Board of Inspectors who alleged therein that they prepared the returns after the counting of the votes. Proceeding therefrom, the Second Division leaped to the conclusion that the questioned returns were fictitious, manufactured or fraudulent and must, as such, be excluded from the canvass. This allegation, however, barely makes out a valid pre-proclamation controversy on the ground of fictitious or manufactured election returns, for ultimately, the grounds relied upon by the Second Division in order to justify its order to exclude the election returns from Precinct Nos. 10 and 10-A, necessitate evidence of sham voting and such fraudulent schemes perpetrated by private respondent Alonzo, but no such evidence was proffered and had there been so, the same is hardly proper in a pre-proclamation controversy such as the instant case. In other words, on the basis only of the election returns which, on their face, appear regular and wanting of any physical signs of tampering, alteration, or other similar vice, the Second Division could not justifiably exclude said returns on the occasion of a pre-proclamation controversy whose office is limited to incomplete, falsified or materially defective returns which appear as such on their face. If there had been sham voting or minimal voting which was made to appear as normal through the falsification of the election returns by private respondent Alonzos followers, such grounds are properly cognizable in an election protest and not in a pre-proclamation controversy. Our ruling in the landmark case of Gov. Tupay T. Loong, et al. v. COMELEC, et al. and its companion cases, leaves no room for entertaining such grounds in a pre-proclamation controversy. We instructed in that case:

Very few aspects of our law today can match the dynamism that has characterized the formulation of our jurisprudential rule on pre-proclamation controversies. The debate has, however, constantly revolved around whether or not the COMELEC may go beyond the face of the election returns in determining their authenticity and genuineness. The rule first established in illustrative cases like Nacionalista Party vs. Comelec and Dizon vs. Provincial Board is that the COMELEC cannot go beyond the election returns in canvassing the same. This rule, however, was eroded in subsequent cases since 1966, when in the case of Lagumbay vs. Comelec, we empowered the COMELEC to nullify certain contested returns on the ground of statistical improbability x x x. And then in the 1971 case of Diaz, Sr. vs. Commission on Elections, in the light of the allegations of petitioners therein to the effect that the elections in question were tainted with fraud, terrorism and other irregularities, we sanctioned the COMELECs procedure of causing the examination by fingerprint and handwriting experts and analysis of the signatures and fingerprints of the precinct books of voter and the CE 39s and voting records, in order to determine whether the reported elections were a sham amounting to no election at all and accordingly deny prima facie value to the election returns and reject them as manufactured or false returns. We reiterated this Ruling in Estaniel vs. Commission on Elections and amplified the same in Usman vs. Commission on Elections. And in the case of Olfato vs. Commission on Elections, we went as far as to hold that the statutory enumeration of the grounds proper for filing a pre-proclamation controversy is not exclusive.

x x x

The year 1987 marked the return to the previous rule that in pre-proclamation controversies, allegations that clean, regular election returns are in fact sham returns because no free and honest elections had at all been held due to fraud, terrorism and other illegal electoral practices, are to be rejected and held to be inappropriate matters to be raised in pre-proclamation cases, the same being properly the office of election contests over which electoral tribunals have sole, exclusive jurisdiction. x x x

x x x

The policy consideration underlying the delimitation both of substantive ground and procedure is the policy to determine as quickly as possible the result of the election on the basis of canvass. Thus, in the case of Dipatuan vs. Commission on Elections, we categorically ruled that in a pre-proclamation controversy, COMELEC is not to look beyond or behind election returns which are on their face regular and authentic returns. A party seeking to raise issues resolution of which would compel or necessitate COMELEC to pierce the veil of election returns which are prima facie regular on their face, has his proper remedy in a regular election protest. By their nature, and given the obvious public interest in the speedy determination of the results of elections, pre-proclamation controversies are to be resolved in summary proceedings without the need to present evidence aliunde and certainly without having to go through voluminous documents and subjecting them to meticulous technical examinations which take up considerable time.

x x x The prevailing doctrine in this jurisdiction, therefore, is that as long as the returns appear to be authentic and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting or the counting of the votes.¹⁰chanroblesvirtuallawlibrary

As the election returns from Precinct Nos. 10 and 10-A, which were excluded by the Second Division of the COMELEC, are undisputedly prima facie regular and untampered on their face, the COMELEC en banc correctly reversed the Second Division and ordered the inclusion of said returns in the canvass of the votes cast in the mayoralty elections in the Municipality of Tandubas, Tawi-Tawi. As such, there is clearly no basis to ascribe grave abuse of discretion to the COMELEC en banc.

WHEREFORE, the instant petition is hereby DISMISSED. The Temporary Restraining Order heretofore issued is hereby DISSOLVED.

Costs against petitioner.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Francisco, and Torres, Jr., JJ., concur.

Davide, Jr., and Puno, JJ., Joins J. Panganibans separate (concurring) opinion..

Panganiban, J., please see Separate Concurring Opinion.