BREN Z. GUIAO vs.

COMELEC
137 SCRA 366

FACTS OF THE CASE

Petitioner Guiao was a candidate for Assemblyman in the May, 1984

elections in Pampanga. At seven o'clock in the evening, the Provincial Board

of Canvassers met at the Conference Hall, Provincial Capitol in San Fernando,

Pampanga, to canvass the election returns from the voting centers in the

province. By 11:30 o'clock in the evening of May 16, 1984, the canvass of all

election returns from all the voting centers of Pampanga had been

completed without any objection raised by anyone to any of the canvassed

returns. Petitioner Guiao garnered 5th place.

It was only after the canvass had been completed did Petitioner Guiao

submit to the Board of Canvassers his written objections to the inclusion in

the canvass of election returns from various voting centers of different

municipalities, on grounds that the canvassed returns were incomplete; that

there was duress, intimidation, falsification, and the canvassed returns were

obviously manufactured; that there were threats, coercion; and that

Comelec's copy was not authentic, statistically improbable; and, that persons

in Saudi Arabia were made to appear as if they had voted.

Notwithstanding delay in the submission of these written objections,

the Board of Canvassers nevertheless held a hearing on the same day. The

Chairman of the Board of Canvassers, Atty. Manuel Lucero also sent to the

Commission on Elections a memorandum, stating and informing that the—

Objections were raised after the completion of the canvass and requesting

that the Provincial Board of Canvassers in Pampanga be authorized to

proclaim the winning candidate based on the results of the completed

canvass without prejudice to the outcome of the hearing on the objections.

 In a resolution dated May 17, 1984, the COMELEC granted the request

of the Chairman of the Provincial Board of Canvassers. The petitioner's

objections were later dismissed by the Board of Canvassers for failure to

substantiate the same. It also appears that at said hearing, there was

presented to the Board the request of the petitioner, thru his counsel Atty.

Suarez, that subpoena be issued to the members of the Citizens Election

Committee from various voting centers enumerated in the written objections.

Said request was denied by the Board on the grounds that said petitioner's

counsel should have been ready with his evidence to support his objections,

the hearing being summary in nature and also to preclude further delay in

the proclamation of the winning candidates. Petitioner appealed the matter

to the COMELEC.

Eventually, the COMELEC 1st Division resolved to sustain the

proclamation of Assemblyman ABER CANLAS made by the Provincial Board of

Canvassers of Pampanga in connection with the May 14, 1984 election as

hereby AFFIRMED and the appeal of the Petitioner-Appellant BREN GUIAO

accordingly DISMISSED.

SUPREME COURT RULING

Section 54 of Batas Pambansa No. 697 states that any candidate,

political party coalition of political parties, contesting the exclusion or

inclusion in the canvass of any election returns shall submit their written

objections to the Chairman of Canvassers. From the provision of said Section

54 it can be inferred that these written objections must be submitted or

manifested in order that it can be reflected in the minutes of canvass during

the actual canvassing of the election returns, that is, during the second

stage of the proceedings as pointed above since it is only during this stage

that the board determines the inclusion or exclusion of the returns by

opening and examining the returns to verify the authenticity and

genuineness of the same.

The summary nature of the proceedings require that the written

objections be filed only during this stage because it is only during this stage

of the canvass when the inclusion or exclusion of any return is in issue and

being passed upon by the board. If during this stage, after the board has

examined the returns and ruled to include them to the canvass with the

acquiescence or approval of the representatives of the political parties and

without any objection representatives of the political parties and without any

objection written or verbal, from any of the candidates or their

representatives, they are included in the canvass and the parties are

estopped from questioning the inclusion of the returns in the canvass and

from the denying the admissibility of said returns in the canvass and from

denying the admissibility of said returns for purposes of the canvass after

the second stage of the canvass.

This must be so since at the third stage of the canvass, the inclusion or

exclusion of any election return is no longer in issue. The issue in this third

stage is the correctness or incorrectness of the mathematical computation

and tabulation of the total voters received by the candidates as a result of

the canvass.

Once the correctness of the mathematical computation of the result of

the canvass during this stage is determined and as established by the board

of canvassers, the fourth stage remains to be a formality which should not be

delayed by frivolous, imaginary and untimely unsubstantiated objections to

election returns, intended to prevent or hinder the proclamation of the

winning candidates.

That these written objections must be submitted during the second

stage, that is during the actual canvassing of the election returns, becomes
express when said Section 54 states "The Board shall defer the canvass of

the contested returns and shall not make any ruling thereon until after all

the uncontested election returns have been canvassed.

How can the board of canvassers defer the canvass of the contested

returns if these written objections are submitted after the second stage, that

is after the canvassing of said returns?

To allow these written objections to prosper after the canvassing would

be requiring the board of canvassers to reopen the canvass of election

returns all over again which otherwise was regularly conducted without any

objection from the political party representatives and the candidate or their

representatives. This would not be in keeping with the summary nature of

the canvass proceedings.

ABDULAKARIM D. UTTO vs. COMELEC

G.R. No. 150111. January 13, 2002.

FACTS OF THE CASE

This petition for certiorari and prohibition seeks to annul the

resolutions of the Commission on Elections en banc, affirming in toto the

resolution of the Comelec (First Division) directing the inclusion of five (5)

election returns excluded by the municipal board of canvassers during the

canvass of votes for the May 14, 2001 election in the municipality of Sultan

sa Barongis, Maguindanao and finding petitioner’s proclamation to be illegal

and void ab initio.

Petitioner Abdulkarim D. Utto and respondent Datu Almansa B. Angas

were candidates for the position of the mayor of the municipality of Sultan sa

Barongis, Maguindanao in the May 14, 2001 election.

For the canvassing of votes of the May 14, 2001 election returns, the

original municipal board of canvassers was composed of Nena Alid as

chairman, and Maceda Lidasan Abo and Noron Gonina, as members. During

the canvassing on May 16, 2001, election returns in Precinct Nos. 15A,

25A/26A, 66A, and 68A/69A were presented. On May 18, 2001, respondent

filed a petition to inhibit Alid and Abo, which resulted in the suspension of the

canvassing. Alid and Abo inhibited themselves from the proceedings.

On May 24, 2001, Bai Haidy D. Mamalinta took over as chairperson,

with Roihaida Khalid and Noron Gonina, as members of the municipal board

of canvassers. The canvassing was again suspended when both Khalid and

Gonina also inhibited themselves from participating in the proceedings.

On May 27, 2001, the provincial election supervisor designated Rufden

Mangelen and Tamano Diolanen as members of the municipal board of

canvassers. In an affidavit executed on May 31, 2001, Tamano Diolanen

stated that at around 6:00 in the morning of that day, chairperson Mamalinta

called him up and informed him that she would convene the board of

canvassers, with instruction for him not to attend because he was already

replaced. He further stated that on May 28, 2001, Rufden Mangelen called

him up to tell him of his (Mangelen) decision to inhibit himself as member of

the board of canvassers due to pressure exerted by chairperson Mamalinta.

In the morning of May 31, 2001, the municipal board of canvassers

convened with chairperson Mamalinta and member Asuncion Corazon

Reneido present. The other member, Mowakiram Samuang was absent.

Before the start of the canvass, chairperson Mamalinta distributed to the

parties present a report on the status of canvassing. Out of the 98 precincts,

the municipal board of canvassers issued four (4) separate rulings excluding

the above-cited five (5) election returns. Particularly, the municipal board of

canvassers ruled that the Election Returns were tampered with or were not

original.
 At this point, respondent orally manifested his intention to appeal the

ruling, and simultaneously filed a verified notice of appeal, which Bai Haidy

D. Mamalinta (chairperson of the municipal board of canvassers) refused to

accept.

Meanwhile, despite respondent’s manifestation, the municipal board of

canvassers proceeded with the proclamation of the candidates for municipal

offices. The board proclaimed petitioner as the duly elected mayor of the

municipality.

SUPREME COURT RULING

Section 38 (9), Comelec Resolution No. 3848[45] provided the

procedure in the disposition of contested election returns and certificate of

canvass. The Comelec precludes the board of canvassers from proclaiming

any candidate as winner, except upon its authorization after it has ruled on

the appeal of the losing party. Any proclamation made in violation thereof

shall be void ab initio, unless the contested returns will not adversely affect

the results of the election. This provision is mandatory and requires strict

observance.

Section 20 (i), Republic Act No. 7166 where Comelec Resolution No.3848

finds basis further states:

“SEC. 20. Procedure in Disposition of Contested Election Returns.--(a) x x x

(i) The board of canvassers shall not proclaim any candidate as winner

unless authorized by the Commission after the latter has ruled on the

objections brought to it on appeal by the losing party. Any proclamation

made in violation hereof shall be void ab initio, unless the contested returns

will not adversely affect the results of the election.”

 Consequently, petitioner’s proclamation was null and void. It was

made on May 31, 2001 after respondent manifested his intention to appeal

the ruling of the board of canvassers. On the day of the proclamation,

respondent attempted to file a verified notice of appeal, but the chairperson

of the municipal board of canvassers refused to accept the appeal. Within

the reglementary period for filing an appeal, respondent went to the

Comelec. Pursuant to Section 20 (i), Republic Act No. 7166, the municipal

board of canvassers may not proclaim any candidate without waiting for the

authorization of the Comelec. Considering that petitioner had a very small

margin of 149 votes over respondent, and there were 944 registered voters

from the five excluded election returns, the results of the municipal election

would be undoubtedly adversely affected by the contested returns. The

proclamation thus made is void ab initio.

It is now settled that an incomplete canvass of votes is illegal and

cannot be the basis of a proclamation. A canvass cannot be reflective of the

true vote of the electorate unless all returns are considered and none is

omitted. When the municipal board of canvassers disregarded the five (5)

election returns, it in effect disenfranchised the voters of the excluded

precincts.

Thus, the Comelec did not abuse its discretion for convening a new

board of canvassers and directing the inclusion of the uncanvassed election

returns and, thereafter proclaiming the winning candidate for mayor and

other municipal officials.

Time and again, the Court has given its imprimatur on the principle

that Comelec is with authority to annul any canvass and proclamation

illegally made. The fact that a candidate illegally proclaimed has assumed

office is not a bar to the exercise of such power. It is also true that after

proclamation, the remedy of a party aggrieved in an election is an election

protest. This is on the assumption, however, that there has been a valid

proclamation. Where a proclamation is null and void, the proclaimed

candidate’s assumption of office cannot deprive Comelec of the power to

declare such proclamation a nullity.

The reason behind the view herein expressed is as aptly elucidated in

Aguam, to wit:

“We draw from past experience. A pattern of conduct observed in past

elections has been the ‘pernicious grab-the-proclamation-prolong-the-

protest-slogan’ of some candidates or parties.’ Really, were a victim of a

proclamation to be precluded from challenging the validity thereof after that

proclamation and the assumption of office thereunder, baneful effects may

easily supervene. It may not be out of place to state that in the long history

of election contests in this country, as observed in Lagumbay vs. Climaco, a

successful contestant in an election protest often wins but ‘a mere pyrrhic

victory, i. e., a vindication when the term of office is about to expire or has

expired.’ Protests, counter-protests, revisions of ballots, appeals, dilatory

tactics, may well frustrate the will of the electorate. And what if the

protestant may not have the resources and an unwavering determination

with which to sustain a long drawn-out election contest? In this context

therefore all efforts should be strained - as far as is humanly possible - to

take election returns out of the reach of the unscrupulous; and to prevent

illegal or fraudulent proclamation from ripening into illegal assumption of

office.”
 SALLY A. LEE vs. COMELEC
G.R. No. 157004. JULY 4, 2003.

FACTS OF THE CASE

Sally A. Lee (petitioner) and Leovic R. Dioneda (private respondent)

were candidates for mayor of Sorsogon City, Sorsogon in the May 14, 2001

elections.

During the canvassing of the election returns, counsel for private

respondent objected to the inclusion of Election Return No. 41150266 for

Precinct No. 28A2 in barangay Bucalbucalan, Sorsogon City on the grounds

that 1) no entries were made for the position of congressman, and 2) Laban

ng Demokratikong Pilipino (LDP) watchers were utilized to fill up election

returns.

In her opposition to private respondent’s objection, petitioner alleged

that 1) the omitted entry in the election return pertains to the position of

congressman which cannot be a subject of pre-proclamation controversy, 2)

the utilization of the watchers, who were under the direct supervision of the

Board of Election Inspectors (BEI), was limited only to the filling up of the

entries affecting the party-list and justified by the severe lack of personnel to

perform the task, and 3) the alleged defect does not affect the integrity of

the election return.

On May 18, 2001, the Board of Canvassers (BOC), finding that the 1)

questioned election return was clear and regular on its face, 2) there was no

pre-proclamation for members of the House of Representatives and party

list, and 3) the grounds relied upon by private respondent are all directed

against the proceedings of the BEI and not the BOC, ruled for the inclusion of
the return. Private respondent thereupon filed on the same day a notice of

appeal of the BOC ruling.

In the meantime, or on May 19, 2001, the BOC proclaimed the winning

candidates, including petitioner as city mayor.

Private respondent thus filed on May 23, 2001 before the COMELEC a

petition assailing the ruling of the BOC and praying for the exclusion of the

questioned election return and the annulment of petitioner’s proclamation.

Petitioner filed her answer to the COMELEC petition, praying for its

dismissal. By Resolution of January 10, 2003, the COMELEC Second Division

granted the petition of private respondent and accordingly excluded the

questioned return from the canvass and nullified the proclamation of

petitioner.

ISSUES

I.

WHETHER OR NOT PUBLIC RESPONDENT IS WITHOUT JURISDICTION TO GO BEYOND

OR BEHIND ELECTION RETURNS AND INVESTIGATE ELECTION IRREGULARITIES IN
PRE-PROCLAMATION CONTROVERSY.

II.

WHETHER OR NOT PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION WHEN

IT RENDERED THE ASSAILED RESOLUTIONS DESPITE THE CLEAR AND APPARENT
LACK OF FACTUAL AND LEGAL BASIS TO SUPPORT THE SAME.

III.

WHETHER OR NOT PUBLIC RESPONDENT COMMITTED PROCEDURAL LAPSES IN THE

PROMULGATION OF THE ASSAILED RESOLUTIONS WHICH AFFECTS THE FAIRNESS
STANDARD.

SUPREME COURT RULING

Petitioner’s argument is bereft of merit.

Section 243 of the Omnibus Election Code provides:

Section 243. Issues that may be raised in a pre-proclamation controversy. -

The following shall be proper issues that may be raised in a pre-proclamation

controversy:

(a) Illegal composition or proceeding of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects,

appear to be tampered with or falsified, or contain discrepancies in the same

returns or in other authentic copies thereof as mentioned in Sections 233,

234, 235, and 236 of this Code;

(c )The election returns were prepared under duress, threats, coercion, or

intimidation, or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were

canvassed, the results of which materially affected the standing of the

aggrieved candidate or candidates.

The doctrine cited by petitioner presupposes that the returns "appear

to be authentic and duly accomplished on their face." Where, as in the case

at bar, there is a prima facie showing that the return is not genuine, several

entries having been omitted in the questioned election return, the doctrine

does not apply. The COMELEC is thus not powerless to determine if there is

basis for the exclusion of the questioned election return.

As to the second error raised by petitioner, she claims that contrary to

the findings of the COMELEC, there is no evidence on record that an LDP

watcher participated in the preparation of the questioned election return.

She posits that the omission of entries was not done with malice or bad faith

nor meant to subvert the true will of the people, and that the election return

in question is clear and regular on its face, duly authenticated by the

signatures and thumbmarks of the six watchers and all the members of the
BEI. Finally, she posits that an incomplete election return is not necessarily

spurious, manufactured or fraudulent to necessitate its exclusion.

As to the third error raised by petitioner, she argues that the January

10, 2003 Resolution of the COMELEC Second Division was promulgated

without giving her notice, and that were it not for her counsel’s "accidental"

visit to the COMELEC on January 13, 2003, said counsel would not have

known that said resolution was already promulgated and the 5-day period

from the date of promulgation to file a motion for reconsideration, as

provided under the following provision of Rule 19 of the 1993 COMELEC

Rules of Procedure, would have lapsed:

Section 2. Period for Filing Motions for Reconsideration. - A motion to

reconsider a decision, resolution, order or ruling of a Division shall be filed

within five (5) days from the promulgation thereof. Such motion, if not pro-

forma, suspend the execution or implementation of the decision, resolution,

order and ruling.

In Lindo v. Commission on Elections, this Court held that the 5-day

period for the filing of an appeal commences from the date of receipt of copy

of the decision. As correctly ruled by the COMELEC:

The petitioner misinterpreted the provision of Section 2, Rule 19 of the 1993

Comelec Rules of Procedure when she stated that "Unlike other cases, the

reglamentary period within which a party can have the decision or resolution

reviewed on motion for reconsideration runs from the date of promulgation."

When not promulgated in open hearing, a simple procedural sense would

dictate that the period to file a Motion for Reconsideration must have to be

tolled from the date of receipt of the decision/resolution involved.

Further, the doctrine laid down in the case of Lindo v. Comelec (194

SCRA 25) would have supported the proposition that the additional
requirement imposed by the COMELEC Rules on advance notice of

promulgation does not form part of the process of promulgation and that the

failure to serve such notice in advance did not prejudice the rights of the

parties and did not vitiate the validity of the decision nor of the

promulgation, as the period for the unsatisfied party to move for

reconsideration can be exercised - not from the date of promulgation, as

misconstrued by petitioner, but from her actual receipt of a copy of the

resolution in question.

As to the non-indication of the ponente of the COMELEC En Banc

Resolution, petitioner merely proffers a possibility of violation of the

COMELEC Rules. It is presumed, however, that an official duty has been

regularly performed.

The lack of merit of petitioner’s arguments notwithstanding, the

COMELEC, in ordering the exclusion of the questioned return, should have

determined the integrity of the ballot box, the ballot-contents of which were

tallied and reflected in the return, and if it was intact, it should have ordered

its opening for a recounting of the ballots if their integrity was similarly

intact. So instructs Section 234 of the Omnibus Election Code which reads:

Section 234. Material defects in the election returns. - If it should clearly

appear that some requisites in form or data had been omitted in the election

returns, the board of canvassers shall call for all members of the board of

election inspectors concerned by the most expeditious means, for the same

board to effect the correction.

Provided, That in case of the omission in the election returns of the

name of any candidate and/or his corresponding votes, the board of

canvassers shall require the board of election inspectors concerned to

complete the necessary data in the election returns and affix therein their

initials: Provided, further, That if the votes omitted in the returns cannot be

ascertained by other means except by recounting the ballots, the

Commission, after satisfying itself that the identity and integrity of the ballot

box have not been violated, shall order the board of election inspectors to

open the ballot box, and, also after satisfying itself that the integrity of the

ballots therein has been duly preserved, order the board of election

inspectors to count the votes for the candidate whose votes have been

omitted with notice thereof to all candidates for the position involved and

thereafter complete the returns. The right of a candidate to avail of this

provision shall not be lost or affected by the fact that an election protest is

subsequently filed by any of the candidates.

And so does Section 235 of the same Code which provides:

Section 235. When election returns appear to be tampered with or falsified. -

If the election returns submitted to the board of canvassers appear to be

tampered with, altered or falsified after they have left the hands of the board

of election inspectors under duress, force, intimidation, or prepared by

persons other than the members of the board of election inspectors, the

board of canvassers shall use other copies of said election returns and if

necessary, the copy inside the ballot box which upon previous authority

given by the Commission may be retrieved in accordance with Section 220

hereof. If the other copies of the returns are likewise tampered with, altered,

falsified, not authentic, prepared under duress, force, intimidation, or

prepared by persons other than the board of election inspectors, the board of

canvassers or any candidate affected shall bring the matter to the attention

of the Commission. The Commission shall then, after giving notice to all

candidates concerned and after satisfying itself that the integrity of the

ballot box and, likewise after satisfying itself that the integrity of the ballots
therein has been duly preserved shall order the board of election inspectors

to recount the votes of the candidates affected and prepare a new return

which shall then be used by the board of canvassers as basis of the canvass.

Thus, this Court in Patoray v. Commission on Elections[25] held:

xxx

As to the election return for Precinct No. 20-A, we ruled that the COMELEC

erred in resorting to the Certificate of Votes in excluding the return in said

precinct. Since the return was incomplete for it lacked the data as to

provincial and congressional candidates, the applicable provision would be

Section 234 of the Omnibus Election Code which deals with material defects

in election returns. Thus, we ruled that the COMELEC should have first

determined the integrity of the ballot box, ordered the opening thereof and

recounted the ballots therein after satisfying itself that the integrity of the

ballots is intact. We then directed the COMELEC to issue another Order in

accordance with said Decision.

xxx

If the integrity of the ballot box had been violated, then there would be

no need to open it. If not, and upon opening it there is evidence that the

integrity of the ballots had been violated, there would be no recounting

thereof, and the COMELEC would then seal the box and order its

safekeeping. Thus Section 237 of the Omnibus Election Code provides:

Sec. 237. When integrity of ballots is violated. - If upon the opening of the

ballot box as ordered by the Commission under Sections 234, 235 and 236,

hereof, it should appear that there are evidence or signs of replacement,

tampering or violation of the integrity of the ballots, the Commission shall

not recount the ballots but shall forthwith seal the ballot box and order its

safekeeping.
 WHEREFORE, the COMELEC is, in accordance with the foregoing

discussion, hereby DIRECTED to determine within twenty days whether the

integrity of the ballot box, the ballot-contents of which were tallied and

reflected in the questioned return, is intact and, if in the affirmative and the

integrity of the ballots is likewise intact, to order the Sorsogon City Board of

Election Inspectors to recount the votes cast in Precinct No. 28A2 in

Barangay Bucalbucalan, Sorsogon City and prepare a new return to serve as

basis of canvass by said board; otherwise the ballot box should no longer be

opened or the ballots should no longer be recounted as the case may be, in

which case an order for the safekeeping of the ballot box should be issued.

The Status Quo Ante Order issued on February 18, 2003 is hereby

DISSOLVED.