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EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 6 2004 .

G.R. No. 160939 (Filomena S. San Juan, petitioner, vs. House of Representatives Electoral Tribunal and Antonio H. Cerilles, respondents.)

RESOLUTION

This is a petition for certiorari and prohibition under Rule 65 of the Rules of Court with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction alleging that the House of Representatives Electoral Tribunal ((HRET) committed grave abuse of discretion amounting to lack of jurisdiction in denying petitioner's motion for reconsideration of HRET Resolution dated January 23, 2003, which directed the continuance of the revision of ballots in the seventy-five (75%) percent remaining contested precincts, without resolving the issue of post-election tampering in the twenty-five (25%) percent pilot precincts.

The facts are as follows:

Petitioner Filomena S. San Juan and private respondent Antonio H. Cerilles were candidates for Representative in the Second District of Zamboanga del Sur in the May 14, 2001 elections.1

On May 19, 2001, the Provincial Board of Canvassers proclaimed petitioner as the winning candidate, having garnered 54,591 votes over private respondent's 53,514 votes, or a margin of 1,077 votes.2

On May 29, 2001, private respondent filed an election protest before the HRET, docketed as HRET Case No. 01-12, assailing the results of the election in all 15 component municipalities of the district totalling 943 precincts that functioned in the May 14, 2001 elections allegedly on account of massive fraud and irregularities committed and the employment of illegal or fraudulent devises before, during and after the elections which benefited petitioner. 3

Private respondent alleged the following as grounds for his protest: (1) Misreading, miscounting and/or miscrediting of votes; (2) misappreciation of ballots in violation of Sec. 211 of the Omnibus Election Code and case law; (3) presence of written-by-one ballots emanating from massive substitute or impostor voting by only a few persons who filled up the ballots or who "voted" in lieu of the real, legitimate registered voters, particularly in the Muslim-denominated municipalities; (4) the use of fake, spurious ballots or genuine but manufactured ballots to increase petitioner San Juan's votes; and (5) manipulation, alteration and falsification of the votes and related data in the election returns and/or vote-padding in favor of San Juan and vote-shaving from Cerilles' votes. 4

Private respondent prayed for a recount, revision and appreciation of the ballots and a thorough examination and scrutiny of the election documents in the protested precincts to uncover the fraud and irregularities committed in these precincts. He also prayed for the award of moral and exemplary damages and attorney's fees.

On June 9, 2002, a special election was conducted in Precinct 18A of Guipos and Precinct 29A/29A1 of Lakewood. Private respondent obtained from these two precincts a total of 194 votes, while petitioner obtained a total of 86 votes. Hence, the margin of votes of petitioner was reduced from 1,077 votes to 969 votes. 5

On June 27, 2001, petitioner filed her Answer with counter-protest specifically denying the allegations of the protest. Petitioner counter-protested the results of the election in all the 943 precincts that functioned in the May 14, 2001 elections, excluding the two precincts where special elections were held. She prayed for the revision and recount of the ballots in the counter-protested precincts, the dismissal of the case, and the confirmation of her proclamation as the duly elected Representative of the Second Legislative District of Zamboanga del Sur. 6

The HRET directed the parties to designate their respective 25% pilot precincts that best exemplified or demonstrated the electoral irregularities or frauds pleaded by them. 7

On August 9, 2001, a preliminary conference was conducted to simplify the issues involved and to identify the evidence to be presented. 8

The parties agreed on the following issues: (1) Whether or not fake or spurious ballots were used in the protested precincts; (2) whether or not the revision, recount and/or re-appreciation of ballots will show that certain ballots were misread and/or rnisappreciated; (3) whether or not the results of recount, revision and/or appreciation of ballots in the contested precincts will alter the results of the congressional elections in the 2^nd Legislative District of Zamboanga del Sur; (4) whether or not protestant Cerilles was a victim of "bawas-bawas" scheme, or vote manipulation and/or vote-shaving, as pleaded in the Petition of Protest; (5) whether or not protestant Cerilles was a victim of fraudulent or deceptive schemes, machinations and/or dirty tactics or black propaganda, as likewise pleaded in the Petition of Protest; (6) whether or not protestant Cerilles is entitled to moral and exemplary damages and attorney's fees. 9

Thereafter, the revision of ballots was conducted from November 26, 2001 to December 7, 2001, covering the 25% contested pilot precincts. The revision of ballots in said precincts resulted in an increase of two votes for protestant-private respondent Cerilles and a reduction of 2,049 votes for protestee-petitioner San Juan. 10

On January 23, 2003, the HRET issued a resolution with the following findings:

XXX XXX XXX

As reflected in the reports of the revision of ballots and per verification of the entries in the election documents inside each ballot box of the precincts involved in the twenty-five (25%) percent pilot precincts, consisting of the tally sheet, election returns, minutes of voting, the ballots and the lower detachable coupons, at least in forty (40) precincts the number of actual voters did not tally with the number of detachable coupons found inside each ballot box xxx.

It has been noted that the ballots with the handwritten name of the protestee on [the] line for Representative/Congressman were also found bearing "COCOFED" stickers on [the] line for Party List xxx. Some of the ballots with the "COCOFED" stickers were also found bearing "P500" or "P300" figure above the handwritten name of protestee San Juan on [the] line for Representative/ Congressman.

It was further noted that the envelopes containing the official ballots for Precinct[s] Nos. 4A1 and 22A of the Municipality of Lapuyan were found inside one ballot box with Serial No. CE 98-084581 while the corresponding election documents were found intact inside the ballot boxes of the said two precincts.

However, protestee, presented five (5) BEI Chairpersons xxx who all certified that they regularly performed their official functions as chairpersons of the various Boards of Election Inspector in the precincts where the votes of the protestee were notably reduced during the May 14, 2001 elections. They insisted that during the counting of votes/ no fake ballots or ballots of protestee marked with "COCOFED" stickers or the figures of "P500" or "P300" were noted. They all emphasized that the votes entered in the tally board and election return of each precinct were correct.11

After making said findings, the HRET pronounced, thus:

In view of the discrepancies and anomalies noted in the above stated precincts involved in the twenty-five (25%) percent pilot precincts of the protest and counter-protest and the testimonies of the five BEI Chairpersons/ the Tribunal holds that the continuation of the proceedings in this case is necessary.

The Tribunal conducted an appreciation of ballots by random sampling and reserved its ruling on the ballots with "COCOFED" stickers and other ballots contested as marked ballots.

Rule 68 of the 1998 HRET Rules as amended by the Resolution of the Tribunal dated on September 13, 2001, states thus:

"Any provision of these Rules to the contrary notwithstanding/ as soon as the issues in any contest before the Tribunal have been joined/ it may direct and require the protestant and counter-protestant to state and designate in writing within a fixed period at most twenty-five (25%) percent of the total precincts, involved in the protest or counter-protest, as the case may be, which said party deems as best exemplifying or demonstrating the electoral irregularities or frauds pleaded by him; and the revision of ballots and/or reception of evidence shall begin with such pilot precincts designated. Upon the termination of such initial revision and/or reception of evidence, and based upon what reasonably appears therefrom as affecting or not the officially-proclaimed results of the contested election, the Tribunal may dismiss the protest or counter-protest, as the case may be, or require the party concerned to show cause why the protest or counter-protest should not be dismissed without further proceedings, or direct motu proprio, with justification, the continuation of the revision of ballots in the remaining seventy-five (75%) percent contested precincts." (underscoring supplied)

WHEREFORE, the Tribunal resolved to DIRECT the continuation of ballots in the seventy-five (75%) percent contested precincts.12

On February 3, 2003, petitioner filed an Omnibus Motion for Reconsideration and Suspension of Revision of the Remaining Unrevised Precincts.13

On February 13, 2003, the HRET issued a resolution,14 thus:

xxx xxx xxx

In a Resolution dated January 23, 2003, the Tribunal directed the continuation of revision in the 75% remaining contested precincts in this case. On February 3, 2003, protestee filed an Omnibus Motion for Reconsideration (of aforesaid Resolution) and Suspension of Revision of the Remaining Unrevised Precincts. Protestee argues that the Tribunal erred when it ruled to continue the proceedings in this case on the basis of its findings of discrepancies and anomalies noted in the 25% contested precincts and the testimonies of the five (5) BEI Chairpersons without considering the fact that such discrepancies and anomalies were the result of post election tampering in the 47 precincts with reversal of votes, and therefore, as declared by the Tribunal in Garcia v. Violago in its Resolution dated January 16, 2003, the results reflected in the election returns, tally boards and statement of votes whose authenticity and due execution have not been assailed should have been the basis of the counting of votes. The post election manipulation, protestee avers, was shown by the fact that the security seals in all the aforesaid 47 precincts were either cut or removed. Protestee maintains that by restoring the correct votes credited to the parties in the election returns, protestee will maintain her margin over protestant and there is no justification to proceed with the revision of the remaining 75% unrevised precincts.

On February 7, 2003, protestant filed his Comment/Opposition stating that protestee's allegation of post election tampering has no sufficient proof except for the physical condition of the ballot boxes found during revision and the affidavits of the BEI Chairpersons, which [proofs do] not meet the test of clear and convincing evidence. Protestant further explains that the irregular condition of ballot boxes were not only present in the 47 "reversal" precincts but also in a number of other precincts which did not exhibit reversal of votes. Protestant also argues that the Garcia ruling cannot be invoked in this case as it has not attained finality yet in view of a pending motion for reconsideration of the ruling of the Tribunal in the said case.

WHEREFORE, pending the resolution of protestee's motion for reconsideration, the Tribunal resolved to SUSPEND, until further notice, the revision of ballots in the 75% remaining contested precincts scheduled on February 17, 2003.

On June 12, 2003, private respondent filed an Urgent Omnibus Motion to Resolve Pending Incident and to Proceed with Revision in the Remaining Contested Precincts,15 which was noted by the HRET.

On August 7, 2003, the HRET resolved to require the parties to file a manifestation whether they were submitting for resolution the issue of post-election tampering on the basis of the evidence already submitted.16

On September 25, 2003, the HRET resolved to conduct oral arguments on the issue of post-election tampering on October 2, 2003.17 The oral argument was later reset to October 23, 2003.18

On October 23, 2003, the HRET resolved to note and grant the Joint Manifestation19 filed by the parties on October 17, 2003 that they no longer desired to engage in oral arguments and were submitting the case re: pilot precincts, inclusive of the issue of post-election tampering, on the basis of the parties' respective evidence and memoranda and other written submissions in various pleadings already filed. 20

On November 20, 2003, the HRET denied private respondent's omnibus motion for reconsideration of its Resolution dated January 23, 2003 directing the continuation of revision in the 75% remaining contested precincts in this case. 21

On December 4, 2003, the HRET resolved to confirm the Order of the Chairman dated December 1, 2003, authorizing the Secretary of the Tribunal to continue the revision of ballots in the 75% remaining contested precincts in this case beginning January 6, 2004 until its completion.

On December 15, 2003, petitioner filed this petition.

Petitioner claims that there was post-election tampering judging from the condition of the ballot boxes discovered during the revision as their respective self-locking metal seal, padlocks, security papers had been tampered, destroyed, cut and/or removed. She argues that had it not been for the apparent tampering or post-election operation on the 47 reversal precincts (representing the 25% pilot precincts), her vote-lead would not be overcome. She asserts that without such vote-reversals, the results of the revision of the 25% pilot precincts show that private respondent failed to proved his allegations of "electoral irregularities or frauds" in his election protest. She contends that since private respondent has not been able to prove the merit of his protest in the 25% pilot precincts, there is no justification to proceed with the 75% remaining unrevised precincts as it will cause great and irreparable injury to her. 22

In a Resolution dated December 18, 2003, the Court issued a status quo ante order and required respondents to comment on the petition.

The main issue is whether or not the HRET committed grave abuse of discretion in directing the continuation of the revision of ballots in the remaining 75% contested precincts without resolving the issue of post-election tampering in the 25% pilot precincts.

The HRET is the sole judge of all contests relating to the election, returns, and qualifications of the members of the House of Representatives. 23

In this case, the HRET directed the continuation of the revision of ballots in the remaining 75% contested precincts in view of the discrepancies and anomalies noted in several precincts involved in the 25% pilot precincts and the testimonies of the five BEI Chairpersons. Said directive was issued in accordance with Rule 68 of the 1998 HRET Rules, as amended by the Resolution of the Tribunal dated September 13, 2001, thus:

"Any provision of these Rules to the contrary notwithstanding, as soon as the issues in any contest before the Tribunal have been joined, it may direct and require the protestant and counter-protestant to state and designate in writing within a fixed period at most twenty-five (25%) percent of the total precincts involved in the protest or counter-protest, as the case may be, which said party deems as best exemplifying or demonstrating the electoral irregularities or frauds pleaded by him; and the revision of ballots and/or reception of evidence shall begin with such pilot precincts designated. Upon the termination of such initial revision and/or reception of evidence, and based upon what reasonably appears therefrom as affecting or not the officially-proclaimed results of the contested election, the Tribunal may dismiss the protest or counter-protest, as the case may be, or require the party concerned to show cause why the protest or counter-protest should not be dismissed without further proceedings, or direct motu proprio, with justification, the continuation of the revision of ballots in the remaining seventy-five (75%) percent contested precincts." (Emphasis supplied.)

Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility. 24 The grave abuse of discretion must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law. 25

Such factors were not shown to be present herein or to have vitiated the assailed HRET resolutions. Said Resolutions appear warranted by the circumstances and, as stated, are in accord with the HRET rules on the matter.

Petitioner has, therefore, failed to show that public respondent HRET committed grave abuse of discretion in issuing the Resolution dated January 23, 2003 directing the continuation of ballots in the 75% contested precincts, and the Resolution dated November 20, 2003 denying petitioner's Omnibus Motion for Reconsideration

Finally, with the holding recently of the May 10, 2004 elections for Members of Congress, the petition herein would appear to have been rendered moot and academic.

WHEREFORE, for failure of petitioner to show grave abuse of discretion on the part of the respondent House of Representatives Electoral Tribunal, and for having been rendered by the recent national elections moot and academic, the petition is DISMISSED. The status quo ante order previously issued is LIFTED. No costs.

SO ORDERED.

(Associate Justices Jose C. Vitug, Artemio V. Panganiban, Leonardo A. Quisumbing, Consuelo Ynares-Santiago and Angelina Sandoval-Gutierrez, JJ., took no part.)

Very truly yours,

(Sgd.) LUZVIMINDA D. PUNO
Clerk of Court