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[G.R. Nos. 150965-66.January 15, 2002]

BATAGA, SR. vs. COMELEC & TAN

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 15 2002.

G.R. Nos. 150965-66.(Wilfredo Bataga, Sr. vs. Commission on Elections and Luzviminda J. Tan.)

Petitioner assails the resolution of the Commission on Elections En Banc affirming the resolution of the Second Division thusly:

WHEREFORE, the rulings of the Board of Canvassers of Kabacan, Cotabato, admitting for canvass the election returns from Precinct Nos. 32A/33A, 81A/82A, 84A, 27A,160A/161A, 19A, 46A, 42A/43A, 118A, 155A/156A, 9A, 5A, 124A, 136A, 62A, 89A, 8/A, 11A, 163A, 14A, 111A, 138A, 2A, 25A, 39A, 47A/54A, 131A, 157A, 6A, 7A, 29A, 126A, 107A, 90A, 162A, 142A, 12A, 24A, 8A, 80A, 128A, 23A, 48A, 133A/134A, 137A, 13A, 85A, 35A, 88A, 150A, 109A/115A, 145A/146A, 121A, 30A/31A, 10A, 1A, 164A, 18A, 94A, 143A, 112A, 119A, 4A, 86A, 148A/154A, 26A, 127A, 110A, 114A, 120A, 149/151A, 108A are hereby set aside, and the proclamation of Wilfredo Bataga Sr., as municipal mayor of Kabacan, Cotabato is hereby annulled.

(pp. 38-39, Rollo)

Petitioner Wilfredo Bataga, Sr. and private respondent Luzviminda J. Tan were candidates in the May 14, 2001 mayoralty elections of Kabacan, Cotabato wherein during the canvass of the election returns private respondent objected to the inclusion of election returns of 90 precincts on the ground that said returns were obviously manufactured or fabricated.

The Board of Canvassers denied private respondent's objections, prompting him to file an appeal with the Commission on Elections.

However, notwithstanding the pendency of private respondent's appeal before the Commission's Second Division, the Board of Canvassers proceeded with the proclamation of petitioner Bataga as the winning candidate again forcing private respondent to file a petition to annul said proclamation.

Upon an examination on the contested election returns, the Commission's Second Division found that indeed out of the 90 questioned election returns, 72 were obviously manufactured being visibly and predominantly written by one and the same hand. The COMELEC's Second Division set aside the ruling of the Board of Canvassers admitting for canvass the 72 election returns. In consequence, petitioner's proclamation was annulled.

Aggrieved, petitioner filed a motion for reconsideration, effectively elevating the matter to the COMELEC En Banc, but still to no avail.

Thus, the instant petition with petitioner contending that the COMELEC gravely abused its discretion when it resolved the motion for reconsideration without setting the same for hearing and when it excluded the subject election returns.

The Court is not convinced.

Petitioner is not entitled as a matter of right to an oral hearing of his motion for reconsideration.

Section 6 of Rule 19 of the COMELEC Rules of Procedure simply provides:

Section 6. Duty of Clerk of Commission to setmotion for hearing. - the Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of the Commission En Banc within ten (10) days from the certification thereof.

Verily, the above was followed. Petitioner's motion was so calendared and considered, and thereafter resolved. Petitioner was thus afforded an opportunity to be heard. There was, therefore, no denial of procedural due process. Where the opportunity to be heard is accorded, either through oral arguments or by written pleadings, there is no denial of procedural due process (Domingo, Jr. vs. COMELEC, 313 SCRA 311 [1999]).

Anent the allegation that the COMELEC abused its discretion when it excluded 72 election returns without looking at other available evidence and without strictly following the procedure laid down in Section 235 of the Omnibus Election Code, suffice it to state that resort to the Commission's handwriting experts is not indispensable, as the Commission can undertake the examination of each and every questioned return by itself, using only common sense and perception, especially in the instant case where the irregularities are clearly discernible from the face of the documentary exhibits of record. They must be excluded for they were found by Commission to be indeed obviously manufactured and fabricated returns (Aratuc vs. Commission on Elections, Nos. L-49705-09, February 8, 1979, 88 SCRA 251, 281).

Factual findings of the COMELEC, based on its own assessment and duly supported by evidence, are conclusive upon the Court, more so, in the absence of substantiated attack on the validity of the same (Mohammad vs. Commission on Elections, 320 SCRA 258 [1999]).

WHEREFORE, petition is dismissed.

Very truly yours,

(Sgd.) LUZVIMINDA D. PUNO

Clerk of Court

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