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EN BANC

G.R. No. 189078 : February 11, 2010

MAYOR VIRGILIO P. VARIAS, Petitioner, v. COMMISSION ON ELECTIONS and JOSE "JOY" D. PEÑANO, Respondents.

D E C I S I O N

BRION, J.:

Rosal v. Commission on Elections1cralaw (Rosal) instructively tells us how to appreciate revision of ballot results as against election returns in an electoral contest, as follows:

(1) The ballots cannot be used to overturn the official count as reflected in the election returns unless it is first shown affirmatively that the ballots have been preserved with a care which precludes the opportunity of tampering and all suspicion of change, abstraction or substitution;

(2) The burden of proving that the integrity of the ballots has been preserved in such a manner is on the protestant;

(3) Where a mode of preserving the ballots is enjoined by law, proof must be made of such substantial compliance with the requirements of that mode as would provide assurance that the ballots have been kept inviolate notwithstanding slight deviations from the precise mode of achieving that end;

(4) It is only when the protestant has shown substantial compliance with the provisions of law on the preservation of ballots that the burden of proving actual tampering or the likelihood thereof shifts to the protestee; and

(5) Only if it appears to the satisfaction of the court or COMELEC that the integrity of the ballots has been preserved should it adopt the result as shown by the recount and not as reflected in the election returns.2cralaw [Emphasis supplied.]

Among other arguments, petitioner Virgilio P. Varias (Varias) asserts in his petition3cralaw that the respondent Commission on Elections (COMELEC) gravely abused its discretion when it did not follow Rosal in resolving the appeal of the mayoralty contest between him and respondent Jose "Joy" D. Peñano (Peñano). He therefore asks us to annul the decision of the COMELEC's First Division dated December 18, 2007 and the COMELEC En Banc Resolution dated August 17, 2009 in Jose "Joy" Peñano v. Virgilio P. Varias and the Municipal Board of Canvassers for the Municipality of Alfonso, Cavite, EAC NO. A2-2008.

THE ANTECEDENTS

Varias and Peñano were candidates for the position of Mayor of Alfonso, Cavite in the May 14, 2007 elections. On May 17, 2007, Varias was proclaimed winner after the canvass of all election returns. He garnered 10,466 votes as against Peñano's 10,225 a margin of 241 votes.

On May 25, 2007, Peñano filed an election protest with the Regional Trial Court (RTC), Branch 18, Tagaytay City, citing various election irregularities committed in 14 precincts/clustered precincts.4cralaw Peñano alleged in his protest that:

8.1 Votes correctly and properly cast in favor of the protestant were deliberately misappreciated and not credited to him by the corresponding board of election inspectors;

8.2 Votes correctly and properly cast in favor of the protestant were intentionally and unlawfully counted or tallied in the election returns as votes for the protestee;

8.3 Valid votes correctly and properly cast in favor of the protestant were illegally and baselessly considered as stray;

8.4 Ballots containing valid votes of the protestant were intentionally and/or illegally misappreciated or considered as marked and declared null and void;

8.5 Votes cast in the name of the protestee in the ballots in excess of the total number voters [sic] who actually voted were illegally considered, appreciated and credited in favor of the protestee;

8.6 Votes cast in ballots prepared by persons other than those who actually voted were considered, appreciated and counted for protestee

The RTC issued on May 28, 2007 a precautionary order commanding the Municipal Treasurer and the Election Officer to take immediate steps to safeguard the ballot boxes of the protested precincts.

Varias filed his Answer with Counter-Protest. In light of the counter-protest, the RTC reiterated its precautionary order on June 5, 2007. On June 12, 2007, the contested ballot boxes were placed under the RTC's custody.

The election protest proceeded in due course and the revision of the ballots was scheduled.

Peñano presented the testimonies/affidavits of his witnesses poll watchers who served in Precincts/Clustered Precincts 87A,5cralaw 90A/90B,6cralaw 92A/92B7cralaw and 102A8cralaw . The witnesses-poll watchers invariably declared that there had been irregularities in the counting of votes, i.e., tallying was done hurriedly; votes actually for Peñano were counted in Varias favor; ballots for Peñano were declared stray or marked; votes that were obviously written by two persons were still credited to Varias total; the Board of Election Inspectors (BEI) of various precincts failed to record all the poll watchers objections/questions on the tally.

Varias, on the other hand, presented the testimonies/affidavits of his own witnesses his poll watchers for Clustered Precinct 90A/B and Precinct 87A9cralaw and the Chair of the BEI of Precinct No. 92A.10cralaw These witnesses invariably declared that there were no unusual incidents in their respective precincts. The poll watchers declared that they brought the ballot boxes and other election paraphernalia to the office of the Municipal Treasurer at the Alfonso Municipal Hall after the counting.11cralaw

After completion of the revision that saw the physical count of all the protested precincts, the Revision Committee submitted a Report12cralaw showing that Peñano garnered more votes than Varias. The Report also reflected the following observations:

1. In Precinct No. 0081A/0081B, the revisor for the Protestee made the general objection for ballots marked V-1 to V-74 as fabricated and substituted ballots.

2. In Precinct No. 0086A/0086B, one ballot was found in the compartment for spoiled ballots.

3. In Precinct No. 0087A/0087B, five (5) voters were included by Court Order as stated in Minutes of Voting. There is also an entry in the incident/irregularities in the MOV of tearing of unused ballots.

4. In Precinct No. 0087A, the revisor for the Protestant made the observation that all the ballots are genuine with COMELEC water marks and that the signature of BEI Chairman at the back of each ballot is authentic and the same with the documents found inside the ballot box.

The revisor for the Protestee made the general objection that all the ballots are substituted ballots and fabricated; the texture of the ballots do not appear the same, the lower and upper portion of the ballot where the stub was placed has too [sic] distinctive tearing, one by original tearing and one was cut by a scissors; and that different signatures appear at the back of the ballots, using two colors of ink black and blue.

5. In Precinct No. 0090A, the envelope for valid ballots is partially torn and no lower detachable coupons were found inside the ballot box. Both revisors for the parties made substantially the same objections/observations as in Precinct No. 0087A.

6. In Precinct No. 0092A, the envelope for valid ballots is partially torn on its lower portion, only one detachable coupon was found inside the large compartment of the ballot box. Both revisors for the parties made substantially the same objections/observations as in the above precincts.

7. In Precinct No. 0095A/0095B, nine (9) voters were excluded by Court Order.

8. In Precinct No. 0101A, one (1) padlock of the ballot box was sawed by Rommel Fernando as it cannot be opened by using any of the three keys for the said precinct.

9. In Precinct No. 0102A, both revisors for the parties made substantially the same objections/observations as in the above precincts. The revisor for the Protestee made the additional observations that the paper seal for valid ballots was pasted. The lower stub in the said precinct were [sic] found in a sealed envelope.

The protagonists then moved for a technical examination of the contested ballots on the conditions that: (1) the examination shall be conducted by experts from the Questioned Document Division of the National Bureau of Investigation (QDD-NBI); and (2) the examination shall be done within the court's premises and under its supervision. The RTC granted the motions.

The NBI Report

The QDD-NBI submitted the following report/findings dated September 26, 200713cralaw which showed that:

1. 82 ballots out of 216 in favor of Peñano were written by one and the same person;

2. The signature of the Chair of the Board of Election Inspectors in Clustered Precinct Nos. 90A/B appearing at the dorsal side of some of the official ballots in the precinct were not written by one and the same person;

3. The signature of the Chair of the Board of Election Inspectors in Precinct No. 87A appearing at the dorsal side of some of the official ballots in the precinct were not written by one and the same person;

4. The signature of the Chair of the Board of Election Inspectors in Precinct No. 92A appearing at the dorsal side of some of the official ballots in the precinct were not written by one and the same person;

5. The signature of the Chair of the Board of Election Inspectors in Precinct No. 102A appearing at the dorsal side of some of the official ballots in the precinct were not written by one and the same person;

6. 29 ballots in the four precincts (87A, 90A/B, 92A and 102A) appear to have erasures of the petitioner's name and the corresponding superimposition of the respondent's name; 19 of them were written by one and the same person.

The RTC Ruling

On December 17, 2007, the RTC rendered a Decision14cralaw in Peñano's favor, finding that he garnered 10,312 votes as against Varias 10,208. The RTC arrived at this tally15cralaw by: (1) partly considering the results of the revision16cralaw (where Peñano was credited with 136 more votes while Varias suffered a 299 vote reduction); (2) disregarding the ballot count results at Clustered Precincts 81A/81B (where Peñano received a 37 vote increase while 83 votes were deducted from Varias total);17cralaw and (3) deducting 6 votes or ballots from Peñano's for the following reasons: set(s) of ballots were written by one person (WBO); entries in a single ballot were written by two persons (WBT); or a ballot had been marked (MB), while at the same time 22 votes were deducted from Varias total for having been either WBO, WBT or MB.

On the critical issue of whether the ballots of Precinct 87A could be relied upon, the RTC cited and used this Court's ruling in Rosal v. COMELEC as legal premise and ruled:

Prescinding from the above doctrinal principals [sic] , we now determine if the ballots can still be considered as the best evidence in determining the results of the election for this precinct.

To begin with, the election protest has contained averments regarding the irregularities in its accomplishment during the May 14, 2007 elections. For clarity, and at the expense of redundancy, these allegations are as follows:

8.1 Votes correctly and properly cast in favor of the protestant were deliberately misappreciated and not credited to him by the corresponding board of election inspectors;

8.2. Votes correctly and properly cast in favor of the protestant were intentionally and unlawfully counted or tallied in the election returns as votes for the protestee;

x x x x

These allegations were corroborated by the testimony of Elvira Salcedo, poll watcher of the protestant who was presented as a witness for this precinct. x x x.

The ballots inside the ballot box for Precinct No. 87A echoes the allegations in the election contest and the testimony of Elvira further supports this claim. But the manner of preserving the ballots should also be inquired into so that they can be used to overturn the election return. The testimony of Elvira is wanting in this regard. However, we can see glimpses of the manner of preservation on the testimony of Nelson Dimapilis a witness for the protestee who served at precinct 87A. He testified that after the ballots were counted, they arranged the arranged [sic] the paraphernalia used in the election in the ballot box and they brought the box in the municipal hall. As there was no evidence presented that the ballot box was not properly preserved or that it was molested after it was brought in the Municipal Hall, the court has no other option than to accept that the contents thereof remained the same while it was kept thereat. Moreover, the court sees no reason to doubt the manner of preserving of the ballot box since it was done substantially in compliance with law. At the same time, when the precautionary order was issued and during the time that the ballot box was brought before the court, the same was retrieved in the place where it is supposed to be found. Indeed, a grand conspiracy is needed in order to molest a ballot box. But since no evidence was presented to prove this, and there being (sic) as to who might have done such a thing, the court should hold that the duty of those who were tasked in the safekeeping of the ballot box was regularly done and that the ballot box was preserved in accordance with the election laws.

Indeed, the ballots in this instance are not the only mute witnesses of the result of the election. The testimony of Elvira as well as the fact that the ballot box was found in the proper place and in the custody of the proper custodian shows that the ballots retained their superior status as evidence as compared to the election return. Thus, the physical count of the ballots as made in the revision should be followed since the election return of this precinct does not reflect the choice of the voters in this precinct.18cralaw

When confronted with the same discrepancies in the figures of the election returns and revision results in Clustered Precincts 90A/90B, Precinct 92A and Precinct 102A, the RTC came to a similar conclusion.

The RTC's decision thus recognized at least 4 precincts where significant variations were evident from the election returns tally, namely: Precincts/Clustered Precincts 87A, 90A/B, 92A and 102A.

The Assailed COMELEC Rulings19cralaw

On appeal, the First Division of the COMELEC affirmed the RTC's decision, ruling that Peñano received a total of 10,314 votes while Varias garnered 10,172 votes. It reached this tally after:

1. It included the RTC-excluded Precinct 81A under a new/different tally Varias 96 votes; Peñano 72 votes;

2. It found, based on its own evaluation of all the ballots in the protested precincts (on the contentious issues of WBO, WBT and MB), that Varias received 1,418 votes and Peñano 716.

Like the RTC, the COMELEC First Division's count largely relied on the results of the revision of the ballots.

On the critical issue of whether the ballots subject of the revision could be relied upon, the COMELEC ruled:

The above standards [referring to Rosal quoted in the RTC decision] burden the protestant of proving the integrity of the ballots before they can be used to overturn the official count. But how is integrity of the ballots established? Number 3 of the standards answers the question. If a law provides for the mode of preserving the ballots "proof must be made of such substantial compliance with the requirements of that mode as would provide assurance that the ballots have been kept inviolate notwithstanding slight deviations from the precise mode of achieving that end." The Court then mentioned the following provisions of the Omnibus Election Code for the safekeeping and preservation of ballots:

x x x x

Clearly, the integrity of the ballots being referred to that has to be proven by the protestant in an election protest refers to the integrity of the ballot boxes that contain the ballots in the place of storage, not the ballots per se.

It shall be recalled that as early as May 28, 2007, the court a quo issued a precautionary Order which directed the Municipal Treasurer and the Election Officer of Alfonso to take appropriate measures to protect the integrity of all election documents pertinent to the precincts protested by the protestant-appellee. Another precautionary Order was likewise issued on June 5, 2007 relative to the precincts counter-protested by protestee-appellant. On the same day of June 5, 2007, an Order was issued by the court a quo for the retrieval and delivery of the ballot boxes with their keys, list of voters with voting records and other documents or paraphernalia The retrieval and delivery are to be made by Sheriffs Noramado Mateo and Teodorico V. Cosare to be assisted by the Municipal Treasurer and Election Officer of Alfonso on June 12, 2007 at 8:30 a.m. The parties were told that they may send their representatives to witness the activity x x x.

The records of the case is bereft of any report that the ballot boxes were found in the place other than the place of storage so as to call the occasion for the protestant-appellee to prove that the same ballot boxes were under the custody of the Municipal Treasurer of Alfonso, Cavite.

The revision reports for the different precincts which are signed by the revisors of both parties also indicate the condition of the ballot boxes at the time they are opened for revision purposes.

In the Revision Report for Precinct 79A (Brgy. Mangas I), the ballot box is with Serial No. CE01-056756. It is reported to have three Comelec padlocks, with three keys, Inner Metal Seal Nos. CE07-406141/CE07406140. As to the space for the "Outer Metal Seal Serial No.", it is filled with "NONE."

In the Revision Report for Precinct No 81A/81B (Brgy. Mangas I), the ballot box is with Serial No. CE-01-056443. It is reported to have three Comelec padlocks, with three keys. The outer metal seal has serial number CE-07-406144 and Inner Metal Seal No. CE-07 406145. As to the condition of the outer and inner metal seal, the Report indicated that they are properly attached and locked.

In the Revision Report for Precinct No 77A/77B (Brgy. Mangas I), the ballot box is with Serial No. CE-01-058-033. It is reported to have three Comelec padlocks, with three keys. There is no outer metal seal and but with two (2) inner metal seals with numbers CE07406136 and CE07-406137.

In the Revision Report for Precinct No 86A/86B (Brgy. Marahan I), the ballot box is with Serial No. CE-01-061579. It is reported that the ballot box is with three (3) Comelec padlocks and with three (3) keys. The outer metal seal is with serial number CE 07-406155 while the inner metal seal is with serial number CE07-406156. Said seals are found to be properly attached and have sealed the ballot box.

In the Revision Report for Precinct No 87A (Brgy. Marahan I), the ballot box is with Serial No. CE 01-063371. It is reported that the ballot box is with three (3) Comelec padlocks and with three (3) keys. The outer metal seal is with serial number CE 07 406158 and the inner seal is with serial number CE:07406157. Both outer and inner metal seals are properly locked.

In the Revision Report for Precinct No 89A/89B (Brgy. Marahan I), the ballot box is with Serial No. CE98-843512 with three Comelec padlocks with three (3) keys. The outer metal seal is with serial number CE07-406161 and the inner metal seal is with serial number CE07-406162. Both outer and inner metal seals are properly attached.

In the Revision Report for Precinct No 90A/90B (Brgy. Matagbak I), the ballot box is with Serial No. CE 01-064817 with three Comelec padlocks and three keys. The outer metal seal is with serial number CE01-64817 and the inner metal seal is with serial number CE:07406163. Both seals are properly attached.

In the Revision Report for Precinct No 95A/95B (Brgy. Marahan II), the ballot box is with serial number CE 98-044211 and with three Comelec padlocks and three keys. There is no outer metal seal but with two (2) inner metal seals with numbers CE0740674 and CE 07040673. The ballot box is properly locked.

In the Revision Report for Precinct No 91A/91B (Brgy. Marahan II), the ballot box is with serial number CE 01-065438. It has three (3) padlocks and three (3) keys. The outer metal seal is with serial number CE 07-406166 and the inner metal seal is with serial number CE 07-406165. The ballot box is in good condition and is properly locked.

In the Revision Report for Precinct No 92A (Brgy. Marahan II), the ballot box is with serial number CE 01-064891 with three (3) Comelec padlocks and three (3) keys. The ballot box has no outer metal seal but with two (2) inner metal seals with numbers CE007406167 and CE 007406168. The ballot box is properly locked.

In the Revision Report for Precinct No. 102A (Brgy. Matagbak II), the ballot box is with Serial No. CE 98-044852 with three Comelec keys (sic) and three keys. The outer metal seal has Serial No. CE 07-406187 while the inner metal seal is with Serial No. CE 07-406188. The ballot box is properly locked, the outer metal seal is properly attached but the inner metal seal is already "opened."

In the Revision Report for Precinct No. 101A (Brgy. Matagbak II), the ballot box is with Serial No. CE 98-047462 with three Comelec padlocks and keys. The outer metal seal is with serial number CE 07-406186 and an inner metal seal is with serial number CE 07-406165. The ballot box is properly locked and the metal seals properly attached.

In the afore-mentioned revision reports, the metal seals for the precincts 79A, 77A/77B, 78A/78B, 95A/95B and 92A, are not properly attached. The two (2) seals are both attached on the holes provided for inner metal seals. Likewise, in Precinct No. 102A, the inner metal seal is "opened." Considering that the Comelec padlocks locked these ballot boxes and the two seals has sealed the inner part of the ballot boxes, the mistake on the placing of the seals, by reasonable inference, can be said to have been made at the time the ballot boxes were closed at the precinct level on election day and not done after the election. As to Precinct No. 102A, although the inner metal seal is "opened," the outer metal seal and the padlocks were properly attached.

From the foregoing, it can be reasonably said that there was substantial compliance with statutory safety measures to prevent reasonable opportunity for tampering with their contents. Thus, the burden of proving that actual tampering with the contents of the ballot boxes shifted to the protestee-appellant.

If such substantial compliance with these safety measures is shown as would preclude a reasonable opportunity of tampering with the ballot boxes contents, the burden shifts to the protestee to prove that actual tampering took place.

To prove that ballots particularly in Precincts 87A, 90A/B, 92A and 102A are tampered, the protestee-appellant points out the following:

1. The envelopes containing the ballots in the Precinct 87A, 90A/B, 92A and 102A are partially torn and that the inner metal seal of the ballot box in Precinct 102A is already broken;

2. The ballots in precinct Nos. 87-A, 90-A/B, 92A and 102A are fabricated and substituted as they have different textures and had signatures at their dorsal portion which are significantly different from the signatures of the chairmen as found in other election documents;

3. The findings of the NBI Questioned Documents Division corroborated the observations of the revisors. It found eighty two (82) ballots filled-up by one person and that twenty-nine (29) ballots contain superimpositions of the votes for the protestant and nineteen (19) among them were made by one person;

4. At the time the election protest was filed, protestee-appellant [sic] was still the sitting mayor who had control of the affairs in the municipal hall of Alfonso where the ballot boxes were stored; and

5. The ballots in Precincts 87-A, 90-A/B, 92A and 102A lack the security marking, the signatures of the BEI chairmen are likewise forged and that the name "Peñano" is superimposed on the name "Varias." Protestee-appellant asserts that these are pieces of evidence that proves election fraud and the lower court, therefore, erred when it preferred the ballots over the election returns.

The fact that the envelopes x x x are partially torn does not by itself prove that there was indeed tampering of the ballots, especially when the report does not indicate with specification the size and the manner the tearing was done and when the statutory safety measures are substantially complied with.

However, an examination of the envelopes pertaining to the aforesaid four precincts submitted to this Commission discloses that the torn portions are on the longer sides of the long brown envelopes. Likewise, the irregular manner by which the envelopes were torn suggests that they occurred while they are inserted into the ballot boxes.

Although the inner metal seal of Precinct No. 102A have (sic) been broken, the Report indicates that the outer metal seal and the Comelec padlocks were attached and intact at the time the ballot box for said precinct was opened.

The result of the thorough examination conducted by this Commission on all the ballots in Precincts 87A, 90A/B, 92A and 102A pertaining to the confidential security features belies the claim of the protestee-appellant that said ballots lack the security markings. This Commission, aided by the use microscope and ultra-violet light, found that ALL the ballots in the said precincts contain ALL the hidden security features. Thus, the ballots are not spurious and cannot be rejected on lack of the security features.

On the findings of the NBI Questioned Documents Division, the same should be the proper subject of appreciation. The fact that the name Peñano is superimposed on the name "Varias" does not conclusively prove the presence of an election fraud. The same can be said of the ballots allegedly filled up by one and the same person.

The protestee-appellant also fails to show proof that the protestant-appellee, while sitting as the mayor of Alfonso, tampered or caused the tampering of the ballots.

In all, the lower court did not err in relying on the ballots over the election returns.20cralaw [Emphasis supplied.]

The COMELEC En Banc denied Varias subsequent motion for reconsideration on the following grounds:

1. The motion for reconsideration was pro forma a mere rehash of arguments and points already passed upon by both the RTC and the First Division;

2. Even on the merits, there is no reason to reverse the ruling of the First Division. There is a legal presumption that official duty has been duly performed x x x There is absolutely nothing in the Motion for Reconsideration, no evidence, not even a scintilla thereof, other than the simple assertion contained therein of the allegation of supposed discrepancy, which would not be sufficient to overturn the presumption of the regularity of the performance of the function by the First Division of this Commission.21cralaw

THE PETITION

Varias faults the COMELEC for grave abuse of discretion on the following grounds:

1. It did not require the protestant to prove that the integrity of the ballot boxes was preserved;

2. It relied on the physical count of the ballots in precincts 87A, 90A/B, 92A and 102A instead of the election returns despite overwhelming evidence that the ballot boxes were no longer intact and that there were irregularities in the examined ballots;

3. It did not invalidate the revised ballots for Peñano in the other contested precincts despite the showing that these ballots were either marked, written by one person per set and/or written by two or more persons;

4. It voided the revised ballots of Varias in the other contested precincts for being marked.

THE COURTS RULING

We find the petition impressed with merit.

The Parameters of Our Review

The present petition is for certiorari under Rule 64, in relation with Rule 65 of the Rules of Court. Under these Rules, our review is limited to the jurisdictional issue of whether the COMELEC acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction.22cralaw Varias anchored his petition on alleged instances of COMELEC's grave abuse of discretion.

Grave abuse of discretion is a concept that defies exact definition, but generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction"; the abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.23cralaw Mere abuse of discretion is not enough; it must be grave.24cralaw Use of wrong or irrelevant considerations in deciding an issue is sufficient to taint a decision maker's action with grave abuse of discretion.25cralaw

Closely related with this limitation is the condition under Section 5, Rule 64 that findings of fact of the Commission supported by substantial evidence shall be final and non-reviewable. Substantial evidence is that degree of evidence that a reasonable mind might accept to support a conclusion.26cralaw

Under these rules, we do not ordinarily review in a certiorari case the COMELEC's appreciation and evaluation of evidence. Any COMELEC misstep in this regard generally involves an error of judgment, not of jurisdiction.27cralaw In exceptional cases, however, when COMELEC action on the appreciation and evaluation of evidence shows grave abuse of discretion, the Court is more than obliged, as it is then its constitutional duty, to intervene; when grave abuse of discretion is present, resulting errors arising from the grave abuse mutate from error of judgment to one of jurisdiction.28cralaw

The above limitations preclude us from ruling on the third and fourth grounds Varias cited in his petition. These cited grounds involve the issue of appreciation and calibration of evidence, which in proper context cannot result in any jurisdictional error, if only because Varias did not allege any grave abuse of discretion committed by the COMELEC in arriving at its conclusions. The COMELEC concluded that: (1) entries in some sets of two or more different ballots were written by one person; (2) entries in a particular ballot were written by two persons; and (3) a ballot had been marked. Varias merely argued that these COMELEC findings and/or conclusions were wrong, and from there proceeded to argue his positions. In the absence of any allegation of jurisdictional error, no basis exists for us to proceed with a certiorari review.

In contrast to the approach taken on the cited 3rd and 4th grounds, the petition's approach of citing the first two grounds is different, as Varias specifically cites and shows how jurisdictional errors were committed under these grounds. Hence, these grounds are open for our consideration and action, albeit under the limited review that certiorari allows.

The Rosal Doctrine, the Rules of Procedure in Election Contests before the Courts Involving Elective Municipal and Barangay Officials,29cralaw and the Present Case

The Rosal ruling, to be sure, does not involve issues merely related to the appreciation or calibration of evidence; its critical ruling is on the propriety of relying on the revision of ballot results instead of the election returns in the proclamation of a winning candidate. In deciding this issue, what it notably established was a critical guide in arriving at its conclusion the need to determine whether the court or the COMELEC looked at the correct considerations in making its ruling. As earlier adverted to, the court's or the COMELEC's use of the wrong or irrelevant considerations in choosing between revision results and the election returns can taint its action with grave abuse of discretion.30cralaw

After Rosal, we promulgated the Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials (the Electoral Contest Rules). Under its Section 5, Rule 13, we defined burden of proof as the duty of a party to present evidence of the facts in issue necessary to establish one's claim or defense. Section 6, Rule 13 of the Electoral Contest Rules provides:

SEC. 6. Disputable presumptions. The following presumptions are considered as facts, unless contradicted and overcome by other evidence:

(a) On the election procedure:

(1) The election of candidates was held on the date and time set and in the polling place determined by the Commission on Elections;

(2) The Boards of Election Inspectors were duly constituted and organized;

(3) Political parties and candidates were duly represented by pollwatchers;

(4) Pollwatchers were able to perform their functions; and

(5) The Minutes of Voting and Counting contains all the incidents that transpired before the Board of Election Inspectors.

(b) On election paraphernalia:

(1) Ballots and election returns that bear the security markings and features prescribed by the Commission on Elections are genuine;

(2) The data and information supplied by the members of the Boards of Election Inspectors in the accountable forms are true and correct; and

(3) The allocation, packing and distribution of election documents or paraphernalia were properly and timely done.

(c) On appreciation of ballots:

(1) A ballot with appropriate security markings is valid;

(2) The ballot reflects the intent of the voter;

(3) The ballot is properly accomplished;

(4) A voter personally prepared one ballot, except in the case of assistors; and

(5) The exercise of one's right to vote was voluntary and free.

The Electoral Contest Rules must be considered complementary to Rosal to the extent that it dealt with the Rosal issues.31cralaw

In the present case, Varias claims that the COMELEC showed manifest and gross partiality and bias in favor of Peñano in appreciating the evidence in the mayoralty contest. Peñano, according to Varias, had the burden of proving that the ballots had been preserved, yet the COMELEC simply dismissed his (Varias) allegations of post-election fraud on the justificatory statement that records of the case are bereft of any report that the ballot boxes were found in a place other than the place of storage so as to call the occasion for the protestant-appellee to prove that the same ballot boxes were under the custody of the Municipal Treasurer of Alfonso, Cavite. To Varias, this finding does not necessarily show that post-election tampering did not happen. The COMELEC should have instead required Peñano to prove that the padlocks and self-locking metal seals attached to the ballot boxes were the same ones the BEI used in locking and sealing them as required by Section 50 of Resolution No. 7815.32cralaw The revision report, Varias claims, show that the padlocks attached to the ballot boxes of Precincts 87A, 90A/B, 92A and 102A were forced open and the self-locking, fixed-length seals attached to the ballot boxes were irregular. The COMELEC merely mentioned that the ballot boxes had padlocks accompanied by keys, but was completely silent on whether the keys could open their intended padlocks. It is necessary to show that the padlocks were the same ones the BEI used in locking the ballots; records of the revision show that in Precincts 87A, 90A/B, 92A and 102A, the padlocks had to be forced open, as the designated keys could not open them.33cralaw Additionally, as the Resolution of the First Division itself shows, there were irregularities in the use of the self-locking metal seals; the serial numbers of the self-locking seals were not uniform the serial number of the metal seal for the ballot box of Precinct 90A/B began, unlike the others, with 01, which means that it was intended for use in the 2001 elections; the serial numbers of the two seals in Precinct 95A/95B, on the other hand, only had seven (7) digits, while those for Precinct 92A had nine (9).

Varias additionally claims that the conditions of the ballots found inside the ballot boxes cast a reasonable suspicion that the ballot boxes had been violated. First, the physical count of the ballots in Precincts 87A, 90A/B, 92A, and 102A was very different from the votes garnered by the parties as reflected in the election returns, the statement of votes, and the tally board; the results in all the other precincts, on the other hand, were substantially the same. This variation is not merely a case of misappreciation of votes of one candidate in favor of the other, as this is a case of ballots previously credited to a candidate literally vanishing. Varias further asserts that misappreciation of ballots of this magnitude would not have gone unnoticed, as the parties had their respective poll watchers in these precincts; no record whatsoever exists of pollwatchers reports of irregularity of this nature during the counting of votes. The COMELEC, Varias claims, was silent on these discrepancies it never tried to explain the sizeable deduction from the votes in his (Varias) favor and the substantial addition to Peñano's total. Second, there is evidence coming from a neutral source the NBI showing that the signatures of the BEI chairmen at the back of the ballots are not the same as the sample signatures of the same persons in other election paraphernalia. Third, the NBI also found out that, in the ballots, there were superimpositions of Peñano's name over Varias.

According to Varias, the totality of the circumstances (1) the forced opening of the padlocks of the ballot boxes of the four controversial precincts; (2) the irregular serial numbers of the metal seals; (3) the substantial variance of the votes of the parties in the election returns and the physical count; (4) the different signatures at the back of the ballots; and (5) the superimpositions points to the obvious fact that the ballot boxes in the four precincts had been violated and the ballots they contained, tampered. This, he asserts, is the inescapable conclusion that an ordinary and unbiased mind would have reached; for unexplained reasons, the COMELEC arbitrarily and whimsically refused to see and appreciate these irregularities. Instead, the COMELEC went to great lengths, greater than those reached by Peñano, to justify its conclusion that, in the four precincts, the ballot boxes and all their contents were well preserved.

As reasonable suspicion exists that the integrity of the ballot boxes had been violated and that tampering of ballots had occurred, Varias asserts that the COMELEC should not have relied on the ballots but on the results reflected in the election returns. Thus, the COMELEC gravely abused its discretion when it acted contrary to the mandate of Rosal and relied on the results of the revision of the ballot boxes.

We agree with Varias contentions, as our own consideration of the issues raised shows that the COMELEC indeed failed to follow Rosal. Specifically, we hold that Varias successfully discharged the burden of proving the likelihood of ballot tampering by presenting competent and reliable evidence facts and circumstances that are simply too obvious to ignore or gloss over. The COMELEC sadly looked at the wrong considerations, thereby acting in a manner not contemplated by law. Its actions clearly fit the "grave abuse of discretion" definition cited above.

Rosal, we preliminarily note, does not, as it should not, always require direct proof of tampering; even if the protestant has shown compliance with legal requirements for the preservation of ballots, the burden of evidence that shifts to the prostestee is not confined to proof of actual tampering, but extends to its likelihood. This cannot but be a reasonable rule, since ballot tampering and ballot substitution are not acts done openly and without precaution for stealth; they are done clandestinely, and to require direct proof of actual tampering almost amounts to a requirement to do the impossible. Direct proof of actual tampering is therefore not the only acceptable evidence that negates the reliability of the ballots subjected to revision; other relevant considerations should be taken into account, most especially those resulting from the examination of physical evidence. By adopting the direct proof approach in the present case, the COMELEC did not look at all the relevant considerations in ruling on the case.

For emphasis and ease of reference, we summarize COMELEC's reasons for relying on the results of the revision of ballots:

a. The RTC issued precautionary orders and allowed the parties, if they so desired, to witness the delivery and transfer of the custody of the ballots from the Municipal Treasurer's Office to the RTC.

b. The ballot boxes were found in no other place than their designated place of storage.

c. There was substantial compliance with the statutory safety measures to prevent reasonable opportunity for tampering; this conclusion is based on the Revision Reports showing the condition of the ballot boxes in the individual precincts when the ballot boxes were opened for revision.

In comparison, COMELEC rejected Varias claimed tampering on the following reasoning:

a. The irregular manner in which the envelopes containing the ballots were torn suggests that this incident occurred when the envelopes were inserted in the ballot boxes.

b. As regards the broken inner metal seal of Precinct 102A, the Report of the Revision Committee shows that the outer metal seal and the COMELEC padlocks were attached and intact at the time the ballot box was opened.

c. All the ballots in Precincts 87A, 90A/B, 92A and 102A contain all the hidden security features. They are not therefore spurious.

d. "On the findings of the NBI Questioned Documents Division, the same should be the proper subject of appreciation. The fact that the name "Peñano" is superimposed on the name "Varias" does not conclusively prove the presence of an election fraud. The same can be said of the ballots allegedly filled up by one and the same person."

e. Varias failed to show proof that Peñano, while sitting as Mayor of Alfonso, tampered or caused the tampering of the ballots.

For these reasons, the COMELEC concluded that the RTC did not err in relying on the ballots.

While parts (a), (b) and (c) of the COMELEC ruling above may arguably be reasonable, we find the COMELEC's dismissive approach to the NBI Report unacceptable. We note that the NBI's technical examination of the ballots was made upon the parties motion. More importantly, the technical examination was undertaken pursuant to the provisions of the Electoral Contest Rules. These findings, too, are based on physical evidence and speak for themselves in demonstrating the discovered irregularities. Under these circumstances, we can only characterize the COMELEC's misappreciation and treatment of the Report as a triviality to be gross and inexcusable.

Correctly appreciated, the NBI Report is part of a chain of facts and circumstances that, when considered together, lead to the conclusion that there was, at the very least, the likelihood of ballot tampering. That there are superimpositions of names in the ballots or that various sets of ballots were written by one person indicate that the ballots had not been preserved in the manner Rosal mandated. The COMELEC, as we quoted above, took these indicators very lightly and simply concluded that they do not conclusively prove the presence of an election fraud. The COMELEC, in short, considered as insignificant the finding that there had been superimpositions or that sets of ballots were written by one person.

We add to these circumstances the NBI's expert finding that the ballots in each of the four precincts contained signatures different from those of their respective BEI Chairs. This additionally raises questions on whether these were indeed the ballots that were previously counted at the precinct level after voting. Why the COMELEC never mentioned that the NBI Report contained this finding is lost on us, and we cannot accept as correct a ruling that entirely disregarded a consideration as significant as this.

We agree with Varias that, other than the NBI Report, there was a systematic pattern of post-election ballot tampering, which arguments Peñano never substantially countered. As we stated above, the dramatic changes in the tally occurred only in four out of the 14 protested precincts, yet the shaving off of Varias lead and accompanying additions to Peñano's a classic case of dagdag-bawas in these four precincts were more than enough to alter the results. If votes for Peñano were indeed erroneously and deliberately credited to Varias at the precinct level, we agree with Varias that an irregularity of this magnitude could not have escaped the attention of Peñano's poll watchers. We significantly note in this regard that the Minutes of Voting and Counting do not contain any report of any incident of this nature. The Electoral Contest Rules presumes that the Minutes of Voting and Counting contain all the incidents that transpired before the Board of Election Inspectors. To our mind, this presumption cannot be rebutted by a mere claim that the BEI refused to enter the objections of Peñano's poll watchers; the disproportion between this claim and the magnitude of the supposed error at the precinct level is simply too great for this claim to be believed. Under the circumstances, we can reasonably conclude that there were changes in the entries in the ballots after they were counted at the precinct level.

Varias therefore presented via a combination of related circumstances more than enough substantial evidence to prove that the otherwise invisible and supposedly impenetrable shield protecting the integrity and sanctity of the ballots has been pierced. While these facts and circumstances, when treated separately, do not directly prove ballot tampering, a combined consideration thereof indicates otherwise and unmistakably point to the conclusion that the integrity of the ballots has been compromised. Faced with conflicting results between a revision of questionable ballots and the official tally reflected in the election results, a reasonable mind would immediately conclude that the revision results cannot prevail over the election returns. Rosal instructs us to so rule.

This conclusion will not change even in the face of the following assertions/arguments Peñano and the COMELEC invariably invoke: (a) that Varias belatedly raised the alleged issue of post-election fraud he did not question the integrity of the ballot boxes and the ballots in his answer, in his motion to dismiss, in his preliminary conference brief, or during the preliminary conference itself, raising the issue only after the result of the revision of ballots had come in;34cralaw (b) that Varias purportedly admitted, as stated in the RTC's preliminary conference order dated June 27, 2007, a discrepancy in the canvass of election returns the canvass reported that the total number of those who actually voted was only 20,943 while the statement of votes showed a combined total of 21,160 votes for the position of Mayor; this fact alone, Peñano asserts, justifies the resort to a revision of ballots and the use of the revision results;35cralaw (c) that the ballots in the 4 precincts were genuine, as they bore all the hidden security features a presumption established by the Electoral Contests Rules;36cralaw and (d) that opinions of handwriting experts are not binding upon the COMELEC; they are generally regarded as purely advisory in character, and the courts may place upon them whatever weight they choose or reject them if they are found to be inconsistent with the facts of the case or otherwise unreasonable.37cralaw

As a process, the technical examination of the ballots under Rule 11, Section 1 of the Electoral Contest Rules, takes place after completion of revision in the protest or counter-protest, except when the protest or counter-protest involves allegations of massive ballot substitution. Thus, we cannot fault Varias for raising allegations of ballot tampering only after the revision of the ballots, as this was the earliest time that the need and the opportunity presented themselves.

We note, with respect to Varias purported admission of the discrepancy in the ballot count, that Peñano did not present the RTC's preliminary conference order dated June 27, 2007; it is not part of the record before us. The alleged admission therefore effectively remains a mere unsubstantiated allegation with no evidentiary support. More importantly, this is an issue that neither the RTC nor the COMELEC ever discussed in their decisions, as Peñano raised this issue for the very first time at this very late stage of the proceedings. Lastly, an attack on the reliability of the official tally reflected on the election returns appears to us to be badly misplaced in the present petition for certiorari , where Varias is asking us for the affirmative relief of nullifying the COMELEC rulings on limited jurisdictional grounds. As a Rule 65 certiorari review is limited in scope and character, we must confine ourselves within the ambit of this limited jurisdiction, lest we ourselves commit grave abuse of discretion.

That the ballots are genuine does not necessarily preclude the possibility of tampering. To be sure, superimposition of names of candidates can be made even on genuine ballots. Whether the ballots are genuine or not is therefore a non-issue, given clearly established evidence that the ballots have been compromised. When tampering of ballots is proven, the compromised ballots whether genuine or not cannot be valid subjects of revision in an electoral contest.

Finally, while we agree with the proposition that opinions of handwriting experts are not necessarily binding on the courts or on quasi-judicial agencies, the court or the quasi-judicial agency must still consider them as submitted evidence and reject them if rejection is called for, providing reasons therefor. The rejection must of course be based on the court's or the agency's own independent evaluation of the pieces of evidence subjected to handwriting examination. Without such consideration, the court or quasi-judicial agency can be considered to have arbitrarily disregarded the expert opinion or evidence.

In sum, we find that the COMELEC gravely abused its discretion in declaring Peñano, based on the results of the revision of ballots, the winner in the mayoralty contest for the Municipality of Alfonso, Cavite. The ballots, after proof of tampering, cannot be considered reflective of the will of the people of Alfonso.

WHEREFORE, premises considered, we GRANT the petition and accordingly ANNUL the interrelated December 18, 2007 Decision of the COMELEC's First Division and the August 17, 2009 Resolution of the COMELEC En Banc in Jose "Joy" Peñano v. Virgilio P. Varias and the Municipal Board of Canvassers for the Municipality of Alfonso, Cavite, EAC NO. A2-2008. As shown by the election returns, we hereby CONFIRM the validity of the proclamation of Virgilio P. Varias as elected Mayor of Alfonso, Cavite. Costs against the private respondent.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO
Acting Chief Justice
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE P. PEREZ
Associate Justice

JOSE C. MENDOZA
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice



Endnotes:

1cralaw G.R. No. 168253, March 16, 2007, 518 SCRA 437, 491.

2cralaw The Rosal Doctrine.

3cralaw Filed under Rule 64, in relation to Rule 65 of the Rules of Court.

4cralaw Clustered Precincts and Precincts 77A/77B; 78A/77B; 79A/79B; 81A/81B; 86A/86B; 87A; 89A/89B; 90A/90; 91A/91B; 92A/92B; 95A/95B; 100A/100B; 101A; 102A.

5cralaw Elvira Salcedo

6cralaw Lanie May Dimapilis

7cralaw Ligaya Mojica

8cralaw Lucita Leyran

9cralaw Nelson Dimapilis

10cralaw Geneilyn M. Zamora

11cralaw Short summary of the testimonies of the witnesses is based entirely on the RTC decision; rollo, pp. 368-408.

12cralaw Id. at 312-321.

13cralaw See the NBI Report; id. at 323-367.

14cralaw Penned by Judge Edwin G. Larida, Jr.

15cralaw In the uncontested precincts, Varias received 8,754 votes while Peñano 9,598; Varias total in the contested precincts, under the Election Returns, was 1715; Peñano's was 627.

16cralaw The new tally for Varias in the protested precincts, after revision, was 1420, while Peñano's total was 763.

17cralaw In the election return, Varias garnered 182 votes while Peñano received 37. The action of the latter precincts was based on its ruling that:

In an Order dated July 23, 2007, the Court excluded this precinct in the revision considering that protestant substituted its revisor therein without firstly informing the Court; the Court stated that the presence of an unauthorized revisor invalidated the proceedings and/or deemed the protestant to have waived his right to revise the ballot box for the said precinct.

18cralaw Rollo, pp. 396-401.

19cralaw The decision of the First Division was penned by Commissioner Rene V. Sarmiento; the En Banc Resolution was penned by Commissioner Nicodemo T. Ferrer, with Commissioner Lucenito Tagle dissenting.

20cralaw Rollo, pp. 63-277.

21cralaw Id. at 278-311.

22cralaw RULES OF COURT, Rule 65, Section 1.

23cralaw Quintos v. Commission on Elections, 440 Phil 1045 (2002).

24cralaw Suliguin v. Commission on Elections, G.R. No. 166046, March 23, 2006, 485 SCRA 219.

25cralaw Pecson v. Commission on Elections, G.R. No. 182865, December 24, 2008, citing Almeida v. Court of Appeals, 489 Phil 649 (2005), where we ruled that in granting or denying injunctive relief, a court abuses its discretion when it lacks jurisdiction, fails to consider and make a record of the factors relevant to its determination, relies on clearly erroneous factual findings, considers clearly irrelevant or improper factors, clearly gives too much weight to one factor, relies on erroneous conclusions of law or equity, or misapplies its factual or legal conclusions.

26cralaw RULES OF COURT, Rule 134, Section 5.

27cralaw See Pagaduan v. Commission on Elections, G.R. No. 172278, March 29, 2007, 519 SCRA 512.

28cralaw See De Guzman v. Commission on Elections, G.R. No. 159713, March 31, 2004, 426 SCRA 698.

29cralaw A.M. No. 07-4-15-SC.

30cralaw Supra note 25.

31cralaw Rosal dealt with matters not otherwise covered now by the cited provisions of the Electoral Contest Rules; i.e., the imperative need to determine whether the security measures provided by law for preserving the ballots and ballot boxes have been followed. The application of the evidentiary presumptions under the cited provision of the Rules must take this interplay into account.

32cralaw Section 50, Resolution No. 7815 provides:

SEC. 50. Disposition of ballot boxes, keys, election returns and other documents. Upon the termination of the counting of votes and the announcement of the results of the election in the precinct, the BEI shall:

x x x x

b. Close the inner compartments of the ballot box, lock them with one (1) self-locking fixed-length seal and then lock the outer cover with the three (3) padlocks and one (1) self-locking fixed-length seal. The three keys to the padlocks shall be placed in separate envelopes which shall be sealed and signed by all members of the BEI.

c. Deliver the ballot box to the city or municipal treasurer, accompanied by watchers. x x x

In case the ballot box delivered by the BEI was not locked and/or sealed, the treasurer shall lock and/or seal the ballot box. The treasurer shall include such fact, including the serial number of the self-locking fixed length seal used, in his report to the Commission.

33cralaw This of course is not strictly accurate, as the cited Report of the Revision Committee shows that it was the lock of Precinct 101A that was forced open.

34cralaw See Peñano's Comment; rollo, pp. 603-614 and the COMELEC's Comment; id., at 615-626.

35cralaw Id.

36cralaw Id.

37cralaw COMELEC's Comment; id., at 615-626.



DISSENTING OPINION

VELASCO, JR., J.:

When the sovereignty of the people expressed by the electorate via the ballot is at stake, everything should be done to have that sovereignty obeyed by all.1cralaw The primary duty to ascertain by all feasible means the will of the electorate in an election belongs; it has broad powers to ascertain the true results of an election by all means available to it.2cralaw And in the discharge of this duty, the Comelec's factual determination, in the course of appreciating contested ballots and election documents, cannot be overturned by the Court, unless it is clearly tainted with grave abuse of discretion.3cralaw

With the above doctrinal pronouncements in mind, I am constrained to register my dissent to the ponencia which I earnestly believe trifles with settled jurisprudence.

The records yield the following relevant background facts:

After the canvas of all election returns in the May 14, 2007 elections for the position of municipal mayor of Alfonso, Cavite, petitioner Virgilio Varias was proclaimed mayor-elect of that town, having garnered 10,466 votes as against private respondent Jose Peñano's 10,225 votes. Shortly thereafter, Peñano filed an election protest with the Regional Trial Court (RTC) in Tagaytay City alleging the commission of several irregularities 4cralaw in 14 precincts. To this protest, Varias filed his answer with counter-protest. As is usual in protest cases of this nature, the RTC lost no time in issuing precautionary orders to safeguard the ballot boxes in the protested and counter-protested precincts.

The election protest proceeded in due course and the revision of ballots and reception of evidence were set and conducted.5cralaw Forthwith, the revision committee submitted revision reports after which the two rivals moved for and agreed to a technical examination of the contested ballots to be undertaken by the Questioned Document Division (QDD) of the National Bureau of Investigation (NBI). The NBI would later also submit its report.

Following the appreciation of the contested ballots, the RTC rendered, on December 17, 2007, judgment finding Peñano the winning mayoralty candidate, having garnered 10,312 votes as aganst 10,208 of Varias. In that decision which eventually paved the way for Peñano's proclamation, the court found four (4) protested precincts, i.e., Precinct Nos. 87A, 90A/B, 92A/B and 102A, as swing voting centers in view of the significant difference between the ballot count results and the election returns tally in the corresponding precinct in question. The RTC invoked Rosal v. COMELEC 6cralaw to support its ruling.

Varias then repaired to the Comelec where its First Division, by Resolution of December 17, 2008, dismissed his appeal. Per the First Division's appreciation of the case and the contested ballots, Peñano won by a margin of 142 votes, slightly higher than the 140 votes determined by the RTC. The en banc Commission would subsequently deny, by another resolution, Varias motion for reconsideration, premised on the same reasons tendered by the First Division, noting in addition that the pro forma rule militates against his plea for reconsideration.

Thus, the instant petition for certiorari and prohibition.

Varias sought to nullify the Comelec's twin resolutions, faulting the poll body with grave abuse of discretion on four grounds. The last two stated grounds, the ponencia properly noted, are not open to certiorari review, involving as they do the matter of appreciating and evaluating evidence that, in the proper context, cannot result in any jurisdictional error inasmuch as Varias failed to allege any grave abuse of discretion committed by the Comelec in arriving at its conclusion. But to the majority, the first two grounds advanced by Varias are so open for such review since he has shown how grave abuse of discretion was committed under these grounds, namely: (1) That the Comelec decision did not require the protestant to prove that the integrity of the ballots was preserved; and (2) It relied on the physical count of the ballots in the 4 key precincts instead of the election returns despite overwhelming evidence that the ballot boxes were no longer intact and that there were irregularities in the examined ballots.

A reasonable suspicion exists, so Varias claims, that the integrity of the ballot boxes had been subverted and that tampering of ballots had occurred. Accordingly, the Comelec should have not relied on the ballots but on the results reflected in the election returns. Thus, Varias concludes, Comelec gravely abused its discretion when it acted contrary to the mandate of Rosal and relied on the results of the revision of the ballot boxes.

Sharing Varias lament, the majority held:

We agree with Varias contentions as our own considerations of the issues raised shows that the COMELEC indeed failed to follow Rosal . Specifically, we hold that Varias successfully discharged the burden of proving the likelihood of ballot tampering by presenting competent and reliable evidence facts and circumstances that are simply too obvious to ignore or gloss over. The COMELEC sadly looked at the wrong considerations, thereby acting in a manner not contemplated by law. Its actions clearly fit the grave abuse of discretion cited above.

This dissent revolves around the question, following Rosal viewed in conjunction with A.M. No. 07-4-15-SC, on whether or not the election returns corresponding to certain precincts protested by Peñano truly reflect the will of the voters therein, as expressed in the ballots they cast during the 2007 mayoralty election in Alfonso, Cavite. A.M. No. 07-4-15-SC, adopting the Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials, (Election Contest Rules or Rules ) , which took effect shortly after the promulgation7cralaw of Rosal and expressly made to apply to election protest cases pending after their effectivity, 8cralaw established under Section 6 of its Rule 13 certain disputable presumptions, thus:

Sec. 6. Disputable presumptions.The following presumptions are considered as facts, unless contradicted and overcome by other evidence:

x x x x

(b) On election paraphernalia:

(1) Ballots and election returns that bear the security markings and features prescribed by the Commission on Elections are genuine; x x x

(c) On appreciation of ballots:

(1) A ballot with appropriate security markings is valid; x x x

Complementing Sec. 6(c)(1) above is the succeeding Rule 10 of the Rules reading:

Sec. 8. Inquiry as to security markings and vital information relative to ballots and election documents.When a revision of ballots is ordered, and for the guidance of the revisors, the court shall inquire about the security markings on the ballots and election documents from the Chairman, Commission on Elections, who shall be obliged to indicate such markings and other vital information that may aid the court in determining the authenticity of ballots and election documents. The parties shall be notified of the results of such inquiry.

Rosal, citing Cailles v. Gomez,9cralaw which, in turn, cited American jurisprudence, summarized the standards to be observed in an election contest predicated on the theory that the election returns which are prima facie evidence of how the electorate voted on election day10cralaw do not accurately reflect the true will of the voters due to alleged irregularities in the appreciation and counting of ballots. These guiding standards are:

(1) The ballots cannot be used to overturn the official count as reflected in the election returns unless it is first shown affirmatively that the ballots have been preserved with a care which precludes the opportunity of tampering and all suspicion of change, abstraction or substitution;

(2) The burden of proving that the integrity of the ballots has been preserved in such a manner is on the protestant;

(3) Where a mode of preserving the ballots is enjoined by law, proof must be made of such substantial compliance with the requirements of that mode as would provide assurance that the ballots have been kept inviolate notwithstanding slight deviations from the precise mode of achieving that end;

(4) It is only when the protestant has shown substantial compliance with the provisions of law on the preservation of ballots [that were actually cast and counted] that the burden of proving actual tampering or the likelihood thereof shifts to the protestee; and

(5) Only if it appears to the satisfaction of the court or COMELEC that the integrity of the ballots has been preserved should it adopt the result as shown by the recount and not as reflected in the election returns.

In its decision, the RTC, in effect, held that the protested ballots have not been fraudulently altered or tampered with after the voting and physical count, irresistibly implying they remained in the same condition as they were when delivered to the municipal treasurer as custodian of the ballot boxes and their contents. The following pronouncements of the RTC say or at least suggest as much:

The ballots inside the ballot box for Precinct No. 87 echoes (sic) the allegations [by Peñano of irregularities] in the election contest and the testimony of Elvira (Salcedo) 11cralaw further supports this claim.

x x x x

Indeed the ballots in this instance are not the only mute instances of the result of the election. The testimony of Elvira as well as the fact that the ballot box was found in the proper place and in the custody of the proper custodian shows that the ballots retained their superior status as evidence compared to the election return. Thus the physical count of the ballots as made in the revision should be followed since the election return for this precinct does not reflect the true choice of the voters in this precinct.12cralaw

x x x x

The same circumstances as in Precinct 87A are present in Precinct No. 90A/90B.13cralaw

x x x x

As the circumstances in [Precinct No. 92A] are similar with those obtaining in Precinct 87A are present in Precinct No. 90A/90B , the ballots should be regarded as reflective of the result of the election.14cralaw

x x x x

Needless to state the court found the same circumstances in this precinct [102A] and hence, the ballots should be followed in determining the result of the election.15cralaw

The Comelec's First Division, in its 212-page resolution16cralaw dismissing petitioner Varias appeal from the RTC's decision, arrived at the same critical factual conclusion on the absence of post-election tampering and, accordingly, ruled that the trial court did not err in relying on the ballots over the election returns. The First Division noted that item #3 of the Rosal standard provides the answer to the question of "how is the integrity of the ballots established." Said item #3 provides that if a law sets out the mode of preserving the ballots, proof must be made of such substantial compliance with the requirements of that mode as would provide assurance of the ballots having been kept inviolate, albeit there might have been slight deviations from the exercise of achieving that end. The First Division listed and reproduced four (4) provisions of the Omnibus Election Code17cralaw and two (2) of Comelec Resolution No. 6667,18cralaw all of which Rosal also referred to, prescribing for the safekeeping and preservation of ballots. But as the First Division was quick to explain, however, "[C] learly, the integrity of the ballots being referred to that has to be proven by the protestant refers to the integrity of the ballot boxes that contain the ballots in the place of storage, not the ballots per se."19cralaw Rosal has a similar qualifying explanation, formulated in the following wise:

Obviously, the proof [of the integrity of the ballots] cannot be supplied by an examination of the ballots themselves, their identity being the very fact of dispute.

x x x x

As made abundantly clear by the foregoing provisions [of the Omnibus Code and Comelec Resolution No. 6667] the mode of preserving the ballots in this jurisdiction is for these to be stored safely in sealed and padlocked ballot boxes xxxx The integrity of the ballots and, therefore, their probative value, as evidence of the voters will are contingent on the integrity of the ballot boxes in which they were stored. x x x20cralaw

The First Division, taking into account the following events and/or documents:

(1) the Precautionary Order of the RTC dated May 28, 2007, directing the municipal treasurer and election officer of Alfonso, Cavite to take proper measures toward protecting the integrity of pertinent election documents/paraphernalia vis-à-vis the protested precincts;

(2) the RTC Order of June 12, 2007 or after Varias had assumed office - for the retrieval by the court sheriffs and delivery to the Court of the protested and counter-protested ballot boxes with their keys;

(3) the revision reports insofar as they described the condition of the different ballot boxes at the time they were opened for revision purposes; and

(4) the evidence adduced by the parties, determined that "there was substantial compliance with statutory safety measures to prevent reasonable opportunity for tampering with their contents,"21cralaw and thus the burden of proving that actual tampering with the contents of the ballot boxes shifted to Varias.22cralaw

And as further determined by the First Division, Varias failed to discharge the burden thus shifted to him, what with the fact, among other things, that all the ballots in the 4 crucial precincts were found by the Commission, using microscopic and ultra violet light, to contain all the hidden security features.23cralaw Under Sec. 6(c) of the Rules, a ballot with security markings is presumed valid. Earlier, Varias raised the issue of the ballots in question being spurious owing to their supposed lack of security markings.

Upon the foregoing perspective, I am disturbed and at a loss to understand how the ponencia could plausibly ascribe grave abuse of discretion on the part of the First Division and the en banc Comelec. As the ponencia itself declares, the term "grave abuse of discretion" denotes capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction; the abuse must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law.

The ponencia takes the position that the Comelecand necessarily the RTC before itlooked at and used the wrong or irrelevant considerations in resolving the case, an approach that thus tainted with grave abuse of discretion its decision. And what were the supposedly correct and relevant considerations that the Comelec did not bother to take into account? The ponencia summarized Varias enumeration of "correct" considerations that, according to him and which the ponencia appears to wholeheartedly agree with, the Comelec whimsically "refused to see and appreciate".24cralaw These are: (1) the forced opening of the padlocks of the ballot boxes of the four controversial precincts; (2) the irregular serial numbers of the metal seals; (3) the substantial variance of the votes of the parties in the election returns and the physical count; and (4) the different signatures at the back of the ballot and incidents of superimpositions, as indicated in the NBI report.25cralaw

I beg to disagree.

To be sure, Comelec looked at and took into account what the ponencia viewed as the correct and relevant considerations, but the stubborn fact is that the poll body found them insufficient to carry the day for Varias. Refusal to look at and consider a certain relevant matter when so required and inability to favorably consider such matter, as was the Comelec's bent in this case, are entirely two dissimilar concepts. The difference need no belaboring. That the Comelec considered Varias manifest concerns about the condition of the ballot boxes for the 4 precincts and the possibility that their security features have been compromised before the revisions proceedings may be gleaned from the ensuing excerpts of the First Division's resolution:

In the Revision Report for Precinct 79A (Brgy. Mangas I), the ballot box is with Serial No. CEO1-056756. It is reported to have three Comelec padlocks, with three keys, Inner Metal Seal Nos. CE07-406141/CE07406140. As to the space for the `Outer Metal Seal Serial No., it is filled with `NONE.

In the Revision Report for Precinct No. 81A/81B (Brgy. Mangas I), the ballot box is with Serial No. CE-01-056443. It is reported to have three Comelec padlocks, with three keys. The outer metal seal has serial number CE-07-406144 and Inner Metal Seal No. CE-07-406145. As to the condition of the outer and inner metal seal, the report indicated that they are properly attached and locked.

In the Revision Report for Precinct 77A/77B (Brgy. Mangas I), the ballot box is with Serial No. CE01-058-033. It is reported to have three Comelec padlocks, with three keys. There is no outer metal seal and but with two (2) inner metal seals with numbers CE07406136 and CE07-406137.

In the Revision Report for Precinct 78A/78B (Brgy. Mangas I), the ballot box is with Serial No. CE-98-0469 16. It is reported to have three Comelec padlocks, with three keys. There is no outer metal seal but with two (2) inner metal seals with numbers 406139 and 406138 and they are found to have been properly attached and locked.

In the Revision Report for Precinct 86A/86B (Brgy. Marahan I), the ballot box is with Serial No. CE01-061579. It is reported that the ballot box is with three Comelec padlocks and with three (3) keys. The outer metal seal is with serial number CE 07-406155 while the inner metal seal is with serial number CE07-406156. Said seals are found to be properly attached and have sealed the ballot box.

In the Revision Report for Precinct No. 87A (Brgy. Marahan I), the ballot box is with Serial No. CE 01-063371. It is reported that the ballot box is with three (3) Comelec padlocks and with three (3) keys. The outer metal seal is with serial number CE 07 406158 and the inner seal is with serial number CE:07406157. Both outer and inner metal seals are properly locked.

In the Revision Report for Precinct No. 89A/89B (Brgy. Marahan I), the ballot box is with Serial No. CE98-843512 with three Comelec padlocks with three keys. The outer metal seal is with serial number CE07-406161 and the inner metal seal is with serial number CE07-406162. Both outer and inner metal seals are properly attached.

In the Revision Report for Precinct No. 90A/90B (Brgy. Marahan I), the ballot box is with Serial No. CE 01-064817 with three Comelec padlocks and three keys. The outer metal seal is with serial number CE01-064817 and the inner metal seal is with serial number CE: 07406163. Both seals are properly attached.

In the Revision Report for Precinct No. 100A/100B (Brgy. Matagbak I), the ballot box is with serial number CE 95-39928 with two Comelec padlocks outside and one Comelec padlock inside. There are three keys accompanying the ballot box. The ballot box is found to be in good condition and that both outer and inner metal seals are properly attached and sealed.

In the Revision Report for Precinct No. 95A/95B (Brgy. Marahan II), the ballot box is with serial number CE 98-044211 and with three (3) Comelec padlocks and three keys. There is no outer metal seals but with two (2) inner metal seals with serial numbers CE 0740674 and CE 0740673. The ballot box is properly locked.

In the Revision Report for Precinct No. 91A/91B (Brgy. Marahan II), the ballot box is with serial number CE01-065438. It has three (3) padlocks and three (3) keys. The outer metal seal is with serial number CE 07-406166 and the inner seal is with CE 07-406165. The ballot box is in good condition and is properly locked.

In the Revision Report for Precinct No. 92A (Brgy. Marahan I), the ballot box is with Serial No. CE 01-064891 with three (3) Comelec padlocks and three (3) keys. The ballot box has no outer metal seal but with two (2) inner metal seals with serial numbers CE 007406167 and CE 007406168. The ballot box is properly locked.

In the Revision Report for Precinct No. 102A (Brgy. Matagbak II), the ballot box is with Serial No. CE 98-044852 with three Comelec keys and three keys. The outer metal seal has Serial No. CE 07-406187 while the inner metal seal is with Serial No. CE 07-406188. The ballot box is properly locked, the outer metal seal is properly attached but the inner metal seal is already "opened."

And on the basis of the revision reports duly signed by the parties respective revisors, the First Division concluded:

In the aforementioned revision reports, the metal seals for the precincts 79A, 77A/77B, 78A/78B, 95A/95B and 92A, are not properly attached. The two (2) seals were both attached on the holes provided for inner metal seals. Likewise, in Precinct No. 102A, the inner metal seal is `opened. Considering that the Comelec padlocks locked these ballot boxes and the two seals has sealed the inner part of the ballot boxes, the mistake on the placing of the seals, by reasonable inference, can be said to have been made at the time the ballot boxes were closed at the precinct level on election day and not done after the election. As to Precinct No. 102A, although the inner metal seal is `opened, the outer metal seal and the padlocks were properly attached.

It may so that the padlock for Precinct No. 102A had, per the revision report for that precinct, been forced open. There was a satisfactory explanation, however, for this forcible opening: the padlock was cut by one Rommel Fernando when it could not be opened by any of the three keys.

Variasand impliedly the ponenciahas made much of the fact that the First Division merely mentioned that the ballot boxes had padlocks with corresponding keys but was completely silent on whether those keys could open their intended padlocks. Varias is obviously unaware of jurisprudence that the mere inability of the keys to fit into the padlocks attached to the ballot boxes would not, without more, vitiate the integrity of the ballots contained therein. Writing for the Court in Carlos v. Angeles, 26cralaw Associate Justice Bernardo Pardo, himself a former COMELEC Chairman, ratiocinates as follows:

Procedurally, the keys to the ballot boxes [are] turned over by the Board of Election Inspectors from the precinct level to the Municipal Board of Canvassers and finally to the municipal treasurer for safekeeping. The three-level turn-over of the keys will not prevent the possibility of these keys being mixed up. Thisis an ordinary occurrence during elections. The mere inability of the keys to fit into the padlocks attached to the ballot boxes does not affect the integrity of the ballots. xxx. (Emphasis supplied.)

Lest it be overlooked, Varias, in his appeal to the Comelec and his subsequent motion for reconsideration of the Comelec First Division's resolution, never touched any issue regarding padlocks, their keys and/or the serial numbers of the metal seals used. Had he done so, Comelec could, with its technical expertise and records of equipment used in the election, have had the opportunity to address and rule on said issue. There is even no mention that Varias questioned these matters during the revision proceedings. As Varias only raised the matter for the first time in the petition before the Court, the same and his supporting arguments cannot be taken cognizance of and may be disregarded as a non-issue.

The Comelec also passed upon the NBI's finding on superimposition, stating that the "fact that the name Peñano is superimposed on the name Varias does not conclusively prove the presence of fraud."27cralaw As to the NBI's findings respecting the signatures of the BEI chairmen at the back of the ballots not being the same as the sample signatures of the same persons in other election paraphernalia, the Comelec, citing the RTC decision, had also addressed the same.

To my mind, the fault of the ponencia lies in its near obsessive reliance on the NBI report. In this regard, it may be well to recall what the Court said in Punzalan v. COMELEC:28cralaw

The authenticity of a questioned signature cannot be determined solely upon its general characteristics, similarities or dissimilarities with the genuine signature. Dissimilarities as regards spontaneity, rhythm, presence of the pen, loops in the strokes, signs of stops, shades, etc., that may be found between the questioned signature and the genuine one are not decisive on the question of the former's authenticity. The result of examination of questioned handwriting, even with the benefit of aid of experts and scientific instruments, is, at best, inconclusive. There are other factors that must be taken into consideration. The position of the writer, the condition of the surface on which the paper where the questioned signature is written is placed, his state of mind, feelings and nerves, and the kind of pen and/or paper used, played an important role on the general appearance of the signature. Unless, therefore, there is, in a given case, absolute absence, or manifest dearth, or direct or circumstantial competent evidence of the character of a questioned handwriting, much weight should not be given to characteristic similarities, or dissimilarities, between the questioned handwriting and an authentic one.

Indeed, the haste and pressure, the rush and excitement permeating the surroundings of polling places could certainly affect the handwriting of both the voters and the election officers manning the said precincts. The volume of work to be done and the numerous documents to be filled up and signed must likewise be considered. Verily, minor and insignificant variations in handwriting must be perceived as indicia of genuineness rather than of falsity.

In Go Fay v. Bank of the Philippine Islands (46 Phil. 968 [1924]), this Court held that carelessness, spontaneity, unpremeditation, and speed in signing are evidence of genuineness. In U.S. v. Kosel (24 Phil. 594 [1913]), it was ruled that dissimilarity in certain letters in a handwriting may be attributed to the mental and physical condition of the signer and his position when he signed. Grief, anger, vexation, stimulant, pressure and weather have some influence in one's writing. Because of these, it is an accepted fact that it is very rare that two (2) specimens of a person's signature are exactly alike." (Emphasis supplied.)

In sum, the said NBI report, particularly on the genuineness of handwriting and other entries on the ballots, is not conclusive to indicate ballot tampering. It is established doctrine in this jurisdiction that opinions of handwriting experts are not binding on the court or Comelec. Hence, it may accept totally or in part or even dispense with the NBI findings and conclusions and conduct its own examinations of the questioned handwriting.29cralaw

Expert testimony is generally regarded, as correctly pointed out by the Solicitor General, to be purely advisory in character and the courts or Comelec "may place whatever weight they choose upon said testimony and reject it, if they find that it is inconsistent with the facts in the case or otherwise, unreasonable."30cralaw Verily, the opinions of handwriting experts, while helpful in the examination of forged documents owing to the technical procedure involved in the analysis, are not binding on the courts.31cralaw As a logical corollary, a finding of forgery does not depend entirely on the testimonies of handwriting experts as the judge must conduct an independent examination on the questioned signature or entry to arrive at a reasonable conclusion as to its authenticity.32cralaw

In view of the foregoing, a becoming respect for the bona fides of Comelec's position on the NBI report should have been the order of the day, absent any compelling reason why it should be otherwise.

To me, it is incorrect to say that the Comelec and the RTC deviated from Rosal, more particularly on (a) the matter of preserving the integrity of the ballots, (b) the question of who has the burden of proving the same and (c) the ensuing shifting of the burden once the integrity of the ballot shall have been proven. On the contrary, the Comelec's action hewed with Rosal. In Rosal, the Court quoted with approval the following doctrine that Cailles lifted from Tebbe v. Smith:33cralaw

So, too, when a substantial compliance with the provisions of the statute has been shown, the burden of proof shifts to the contestant of establishing that, notwithstanding this compliance, the ballots have in fact been tampered with, or that they have been exposed under such circumstances that a violation of them might have taken place. But this proof is not made by a naked showing that it was possible for one to have molested them. The law cannot guard against a mere possibility and no judgment of any of its courts is rendered upon one.

In the case at bar, there has been, to the satisfaction of the RTC and Comelec, substantial compliance with the law and Comelec rules as to the manner of keeping the integrity of the ballots as would preclude a reasonable opportunity of tampering with the ballot boxes contents. Upon proof of compliance, the burden, following Rosal, shifted to Varias to establish actual tampering or the likelihood thereof. As found by the RTC and the Comelec (First Division and en banc ), however, Varias was unable to satisfactorily discharge this burden. He, instead, alleged that tampering likely occurred because Peñano was still the sitting mayor when he filed his protest, the padlocks in the four key precincts were forced open, and superimposition and signature irregularity were contained in the NBI's report.

The foregoing considered, it simply makes little sense to argue that the Comelec and the RTC gravely abused their discretion when they relied on the physical count of the ballots against the entries appearing in the election returns for the 4 precincts in question. The determination of whether or not a ballot is valid should be left exclusively to the trial court or electoral tribunal taking cognizance of the election case on the basis of what appears on the face on the ballots.34cralaw The courts or Comelec's discretion on the matter is circumscribed, however, by this precept: extreme caution should be observed before any ballot is invalidated and doubts in the appreciation of ballots are resolved in favor of their validity.35cralaw

Lest it be overlooked, a meticulous observance and examination of each and every contested ballot seem to have been conducted by the RTC and Comelec before coming up with their own parallel findings and conclusions. The First Division devoted over 180 pages of its resolution to this examination process alone, which may argue against the idea of that body acting on a whim or with grave abuse of discretion.

As in any certiorari proceedings, the ultimate issue boils down to the question of whether grave abuse of discretion attended the assailed action of a government officer or office. Or put a bit differently, the question to be asked is whether the action in question passes the test of reasonableness. In 1916, the landmark case of Lino-Luna v. Arcenas36cralaw expounded on the juridical concept of "discretion" as follows:

In its very nature, the discretionary control conferred upon the trial judge over the proceedings had before him implies the absence of any hard-and-fast rule by which it is to be exercised, and in accordance with which it may be reviewed. But the discretion conferred is not a willful, arbitrary, capricious and uncontrolled discretion. It is sound, judicial discretion which should always be exercised . As was said in the case of : "The establishment of a clearly defined rule of action would be the end of discretion, and yet discretion should not be a word for arbitrary or inconsiderate action." So in the case of Goodwin vs. Prime (92 Me., 355), it was said that "discretion implied that in the absence of positive law or fixed rule the judge is to decide by his view of expediency or by the demands of equity and justice."

There being no "positive law or fixed rule" to guide the judge in the court below in such cases, there is no "positive law or fixed rule" to guide a court of appeal in reviewing his action and such courts will not therefore attempt to control the exercise of discretion by the court below unless it plainly appears that there was "inconsiderate action" or the exercise of mere "arbitrary will", or in other words that his action in the premises amount to an "abuse of discretion". But the right of an appellate court to review judicial acts which lie in the discretion of inferior courts may properly be invoked upon a showing of a strong and clear case of abuse of power or that the ruling objected to rested on an erroneous principle of law not vested in discretion.

To my mind, the Comelec's action does not constitute what Lino-Luna would view as "a strong and clear case of abuse of power" or, in fine, come within the definition of grave abuse of discretion. For, the Comelec's determination as to the compliance with the prescribed measures to safeguard the integrity of the ballots was not without valid substantiation. That the Comelec indeed made short shrift of Varias claim about the possibility of ballot tampering and his supporting arguments therefor is conceded. But the Comelec had its own plausible reasons for rejecting the claim. The ponencia itself admits that part (3 out of 5) of Comelec's reasons may "arguably be reasonable." Yet, the same ponencia would impute grave abuse of discretion on Comelec, reserving its strongest disapproval at the poll body's purported trivial misappreciation of the NBI report on the handwriting and other entries on the ballot, as if such report concludes, by the operation of some fiction of law, the Comelec or the RTC.

The NBI report, according to the ponencia, forms part of a chain of facts/information which, when combined together, indicated the likelihood of ballot tampering. This argument may be accorded some cogency but for the fact that the Comelec and/or the RTC for its/their own stated reasons, did not find the NBI report a compelling evidence deserving the kind of weight Varias understandably wanted it to carry. In view of extant jurisprudence, grave abuse of discretion cannot be laid at the doorsteps of the COMELEC and/or the RTC for the evidentiary treatment they gave under the premises to the NBI report.

I can concede that the significant discrepancy between the results of the ballot count during revision and those reflected in the election returns for the 4 precincts cannot plausibly be explained by just looking at the number of required voters and the number of those who actually voted. The explanation lies somewhere else. It was captured in a sense by the RTC when it stated, in gist, that the revised ballots in the ballot boxes for the four precincts and the testimonies of Peñano's witnesses echo the allegations of irregularities.37cralaw Properly appreciated, the revised ballots accounted for the significant addition to Peñano's votes and the corresponding subtraction to Varias.

It has been suggested that the Comelec erred when its decision no longer required Peñano, as Rosal allegedly would, to prove that the integrity of the ballot boxes and their contents has been preserved in a mode as to preclude a reasonable opportunity of tampering with the ballots inside. But if Peñano, as protestant, had not been asked to discharge this burden, it ought to be pointed out, nevertheless, that the Comelec's own investigation and the evidence adduced during the trial showed that the requirements for the care and preservation needed to safeguard the integrity of the ballot boxesand necessarily of their contents - have substantially been complied with. To be sure, Rosal did not intend to impose on the protestant the obligation to prove a fact the trial court deemed already proven. The absurdity of a contrary view could have not been contemplated by Rosal . And as Rosal would also tell us, if it appears to the satisfaction of the trial court or Comelec that the ballots are intact and genuine, then it could adopt the result as shown by the ballot recount and not as reflected in the election returns.

If the Comelec thus took it upon itself to look into and validate the matter of whether the ballots have been molested, a capricious exercise of judgment cannot, for that act alone, be imputed on the poll body. A lapse of judgment, perhaps, but not of grave abuse of discretion as is equivalent to want of jurisdiction. For, in the final analysis, Comelec's act was no more than an attempt to determine the true voting will of the good people of Alfonso, Cavite. It is a settled rule that laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be undermined by mere technical objections.38cralaw

The binding effect, even on this Court, of the factual determinations of the Comelec, exercising particular expertise in its field of endeavor, such as appreciation of ballots and evaluation of evidence on election irregularities, is firmly established. Hence, any attempt to overturn, on a petition for certiorari , factual determinations and conclusion of the Comelec would very well wreak havoc on well-settled jurisprudence. Yet, wittingly or unwittingly, this seems to be what the ponencia intends to accomplish in this case. This should not be allowed.

I, therefore, vote to deny the instant petition.

PRESBITERO J. VELASCO, JR.
Associate Justice



Endnotes:

1cralaw Pangandaman v. COMELEC, 319 SCRA 287 (1999).

2cralaw Octava v. COMELEC, 518 SCRA 759, 765 (2007).

3cralaw De Guzman v. COMELEC, 426 SCRA 698 (2004); Aradais v. COMELEC , 428 SCRA 277 (2004).

4cralaw The alleged irregularities are as follows:

"Votes correctly and properly cast in favor of protestant were deliberately misappreciated and not credited to him by the corresponding board of election inspectors;

"Votes correctly and properly cast in favor or protestant were intentionally and unlawfully counted or tallied in the election returns as votes for the protestee;

"Valid votes correctly and properly cast in favor of protestant were intentionally were illegally and baselessly considered as stray;

"Ballots containing valid votes of the protestant were intentionally and/or illegally misappreciated or considered as marked and declared null and void;

"Votes cast in the name of protestee in the ballots in excess of the total number voters who actually voted were illegally considered, appreciated and credited in favor of the protestee;

"Votes cast in ballots prepared by persons other than those who actually voted were considered and appreciated and counted for protestee." (See Rollo, p. 400)

5cralaw As narrated in the RTC Decision, Peñano presented the testimonies of four of his poll watchers; Varias presented the testimonies of his poll watchers in two precincts and the Board of Election Inspector chairperson for Precinct No. 92-A.

6cralaw G.R. No. 168253, March 16, 2007, 518 SCRA 473.

7cralaw March 16, 2007.

8cralaw Sec. 1, Rule 16.

9cralaw 42 Phil. 496 (1921).

10cralaw Lerias v. HRET, 202 SCRA 808 (1991).

11cralaw Peñano's poll watcher for Precinct No. 87A.

12cralaw Pages 34-35 of the RTC Decision; Rollo, pp. 400-401.

13cralaw Id. at 401.

14cralaw Id. at 404.

15cralaw Id. at 406.

16cralaw Penned by Commissioner Rene Sarmiento.

17cralaw Secs. 160, 217, 219 & 220

18cralaw General Instructions for the Board of Election Inspectors on the Casting and Counting of Votes in Connection with the May 10, 2004 Synchronized National and Local Elections; a counterpart provision is found in Comelec Resolution No. 7815 - General Instructions for the Board of Election Inspectors on the Casting and Counting of Votes in Connection with the May 14, 2007 Synchronized National and Local Elections.

19cralaw Page 23 of the 1st Division resolution; Rollo, p. 85.

20cralaw Note No. 5, p. 498.

21cralaw Ibid, p. 27, rollo, p. 89.

22cralaw Ibid.

23cralaw Ibid, p. 91.

24cralaw Ponencia, p. 20.

25cralaw Ponencia, p. 19.

26cralaw Carlos v. Angeles, supra.

27cralaw Rollo, p. 92.

28cralaw G. R. No. 126669, April 27, 1998, 289 SCRA 702.

29cralaw Punzalan v. COMELEC, 289 SCRA 702; Section 22, Rule 132 of the Rules of Court explicitly authorizes the court (public respondent in this case) to make itself the comparison of the disputed handwriting "with writings admitted as genuine by the party whom the evidence is offered."

30cralaw Comment of COMELEC, p. 11, citing Francisco on Evidence, Vol. VII, Part 1, p. 662.

31cralaw Gimenez v. Commission on Ecumenical Mission and Relations of the United Presbyterian Church in the USA, 432 Phil. 895 (2002).

32cralaw G.M. Philippines, Inc. v. Cuambot, G.R. No. 162308, November 22, 2006, 507 SCRA 552.

33cralaw 108 Cal. 101.

34cralaw Malaluan v. Comelec, 254 SCRA 397.

35cralaw De Guzman v. COMELEC, supra, citing cases.

36cralaw 34 Phil. 80 (1916).

37cralaw See Note No. 4, supra.

38cralaw Carlos v. Angeles, G.R. No. 142907, November 29, 2000; Gardiner v. Romulo, 26 Phil. 521 and other cases.





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