DANILO “DAN” FERNANDEZ,
Petitioner,
G.R. No. 171821
October 9, 2006
- versus -
COMMISSION ON ELECTIONS
and TERESITA LAZARO,
Respondents.
x-----------------------------------------x
D E C I S I O N
chanroblesvirtualawlibrary
YNARES-SANTIAGO, J.:
This Petition for
Certiorari and Prohibition under Rule 64 of the Rules of Court
seeks to reverse the March 9, 2006 En Banc Resolution[1] of public
respondent Commission on Elections (COMELEC) in SPC No. 04-105, denying
petitioner’s Motion for Reconsideration of the April 12, 2005
Resolution[2] of COMELEC’s First Division (First Division) dismissing
the petition to annul private respondent Teresita Lazaro’s proclamation
as duly elected Governor of Laguna.
In the May 10, 2004 national and local elections, petitioner and
private respondent ran for governor of Laguna. During the
canvassing of the certificates of canvass by the Provincial Board of
Canvassers (PBOC), petitioner moved to suspend the proceedings claiming
tampering of election returns for San Pablo City and Biñan,
Laguna, which allegedly increased private respondent’s votes. The
PBOC denied the motion ruling that the issues raised should be
ventilated before the City and Municipal Board of Canvassers. On
May 16, 2004, the PBOC proclaimed private respondent as governor. chanroblesvirtualawlibrary
On May 19, 2004, petitioner sought to nullify the proclamation of
private respondent with the First Division of the COMELEC, docketed as
SPC No. 04-105, alleging that the PBOC proceedings was flawed and
irregular. Private respondent moved to dismiss the petition,
alleging that petitioner did not file written and formal objections
with the appropriate Board of Canvassers and that he failed to produce
evidence of fraud in relation to the certificates of canvass of San
Pablo City and Biñan.
Meanwhile, the First Division suspended private respondent’s
proclamation and directed the Election Records and Statistics
Department (ERSD) to examine whether the photocopied election returns
submitted by petitioner were prepared in sets or groups by only one
person. The suspension was later lifted upon private
respondent's motion and the order for examination of the election
returns stayed.
More than a month after, however, the First Division again directed the
ERSD to cause the examination of the election returns from the disputed
cities and municipalities. It also ordered the concerned Boards
of Canvassers to deliver copies of the election returns used in the
canvassing. Private respondent questioned these orders arguing
that she never knew of election returns being presented during any of
the hearings on the petition and that petitioner never prayed for the
examination thereof.
On April 12, 2005, the First Division dismissed the petition to annul
private respondent’s proclamation. Petitioner’s motion for
reconsideration was denied for lack of merit by the COMELEC En Banc on
March 9, 2006, hence, this petition[3] alleging grave abuse of
discretion of public respondent for deliberately failing to mention the
outcome of the examination of the election returns as ordered by the
First Division.
The petition lacks merit.
Grave abuse of discretion arises when a lower court or tribunal
violates the Constitution, the law or existing jurisprudence.
Grave abuse of discretion means such capricious and whimsical exercise
of judgment as would amount to lack of jurisdiction; it contemplates a
situation where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, so patent and gross
as to amount to an evasion of positive duty or a virtual refusal to
perform the duty enjoined by, or to act at all in contemplation of
law.[4] In a certiorari proceeding, as in the instant case, it is
imperative for petitioner to show caprice and arbitrariness on the part
of the court or agency whose exercise of discretion is being
assailed. chanroblesvirtualawlibrary
No grave abuse of discretion attended public respondent’s decision to
affirm the actions taken by the PBOC and the First Division because it
only applied Section 17 of Republic Act No. 7166[5]
mandating that matters raised under Sections 233, 234, 235 and 236 of
the Omnibus Election Code on the preparation, transmission, receipt,
custody and appreciation of the election returns, and the certificates
of canvass shall be brought in the first instance before the board of
canvassers only.
In the instant case, it was incumbent for petitioner to raise his oral
objections to the chairman of the city and municipal board of
canvassers of San Pablo and Biñan, respectively, at the time the
questioned returns or certificates of canvass is presented for
inclusion in the canvass. However, petitioner questioned the
election returns for San Pablo City and Biñan on the ground of
fraud only before the provincial, and not before the appropriate city
and municipal, boards of canvassers. In fact, petitioner
belatedly questioned the election returns for Calamba City and four
other municipalities, to wit: Cabuyao, San Pedro, Sta. Rosa and
Nagcarlan, in his petition with the First Division when he attached the
contested election returns in his memorandum.
Petitioner cannot justify raising belatedly the issue of tampering
before the PBOC for allegedly discovering the fraud only a few hours
from the start of the proceedings as this would run counter to the
mandatory rule requiring protestants to present objections to the
inclusion or exclusion of election returns at the time the questioned
returns are presented for inclusion in the canvass. Thus:cralaw:red
The Court finds that the charge of grave abuse of discretion is more
apparent than real. Section 20 of R.A 7166 and Section 36 of COMELEC
Resolution 2962 requires that an oral objection to the inclusion or
exclusion of election returns in the canvassing shall be submitted to
the Chairman of the Board of Canvassers at the time the questioned
return is presented for inclusion in the canvass. It is not
denied by petitioner that the objections interposed were made after the
election returns in certain precincts were included in the
canvass. Such belated objections are fatal to petitioner’s cause.
Compliance with the period set for objections on exclusion and
inclusion of election returns is mandatory. Otherwise, to allow
objections after the canvassing would be to open the floodgates to
schemes designed to delay the proclamation and frustrate the
electorate’s will by some candidates who feels that the only way to
fight for a lost cause is to delay the proclamation of the winner. It
should be noted that proceedings before the Board of Canvassers is
summary in nature which is why the law grants the parties a short
period to submit objections and the Board a short period to rule on
matters brought to them. Petitioner’s plea for a liberal interpretation
of technical rules and allow his untimely objections cannot be granted
in this case. Liberal construction of election laws applies only when
it becomes necessary to uphold the people’s voice.[6] (Emphasis
added)
The fact that COMELEC’s First Division ordered the examination of
election returns notwithstanding petitioner’s belated objections
thereto would not change the outcome of this case. For one, it
eventually dismissed the petition to annul private respondent’s
proclamation after the parties submitted their pleadings and
participated in hearings on the matter. For another, public
respondent upheld the validity of the First Division’s dismissal of the
petition and expressly ruled that there was no need to resort to the
technical examination of the returns.
We have ruled in Ocampo v. Commission on Elections[7] that:cralaw:red
[F]indings of facts of administrative bodies charged with their
specific field of expertise, are afforded great weight by the courts,
and in the absence of substantial showing that such findings are made
from an erroneous estimation of the evidence presented, they are
conclusive, and in the interest of stability of the governmental
structure, should not be disturbed. The COMELEC, as an
administrative agency and a specialized constitutional body charged
with the enforcement and administration of all laws and regulations
relative to the conduct of an election, plebiscite, initiative,
referendum, and recall, has more than enough expertise in its field
that its findings or conclusions are generally respected and even given
finality. We do not find the instant case an exception to this avowed
rule.
We agree with public respondent’s findings, thus:cralaw:red
For one, the irregularity in the preparation of the election returns
should have been brought before the Boards of Canvassers of San Pablo
City and Biñan, respectively, at the time the said returns were
being canvassed by the said boards. This is required under
Section 17 of Republic Act No. 7166, to wit:cralaw:red
Section 17.
Pre-proclamation Controversies: How Commenced. – Questions
affecting the composition or proceedings of the board of canvassers may
be initiated in the board or directly with the Commission.
However, matters raised under Sections 233, 234, 235 and 236 of the
Omnibus Election Code
in relation to the preparation, transmission, receipt, custody and
appreciation of the election returns, and the certificates of canvass
shall be brought in the first instance before the board of canvassers
only.
For another, assuming that such objections could be legally brought
before the PBOC, Fernandez’s objections could still not prosper on the
following grounds:cralaw:red
First, the grounds relied upon by Fernandez, i.e., dagdag-bawas on the
election returns and returns written by one person, compel this
Commission to pierce the election returns, an act anathema to the
essence of a pre-proclamation controversy since the process would
necessarily entail recount of ballots and technical examination of
election returns, fingerprints and signatures appearing thereon.
To require the Commission to examine the circumstances surrounding the
preparation of election returns would run counter to the rule that a
pre-proclamation controversy should be summarily decided. Thus,
there was no need for the First Division to resort to the technical
examination of the returns.
Second, the other ground relied upon by Fernandez, i.e., tampering of
election returns, is not a province of the PBOC since it is not
furnished with a copy of the election returns sought to be
re-canvassed. To stress, it canvasses only a copy of COCV with
supporting Statement of Votes by Precinct (SOVP). To require the
PBOC to re-examine the election returns from the city or municipal
level is an unlawful encroachment upon the jurisdiction or function of
the city or municipal board of canvassers specifically and distinctly
assigned to it by law. Again, such issue should have been
brought before the proper Board of Canvassers for the latter to
appreciate whether or not such returns are indeed tampered.
Relatively, in Anni vs. Rasul, the Supreme Court made it clear that the
question of whether certain returns are falsified or have been tampered
with and should not be included in the canvass, must first be raised
before the board of canvassers, subject to appeal from its decision to
the COMELEC. In Guiao vs. COMELEC, the Supreme Court explained this rule, to wit:
chan robles virtual law library
The law envisions that while the board is doing its work in canvassing
the returns and tallying the result, its attention should be called to
any question which could affect its work, so as to enable the said
board to decide whether “to defer the canvass or to continue with it.”chanroblesvirtualawlibrary
Considering that in the case at bar, petitioner presented his Written
(sic) objections only after the canvass of all the election returns or
after the votes reflected in all returns had been tallied, the
belatedness of the submission of petitioner's written objection renders
futile its challenge to the canvass already accomplished by the
Board. The Board has its legal obligation, after canvass of the
returns, to proclaim the elected candidates.
Third, as correctly held by the First Division, Fernandez did not
comply with the mandatory requirements set forth under Section 36 of
COMELEC Resolution No. 6669, implementing Section 17 of RA 7166, viz:cralaw:red
Sec. 36. Procedure in
disposition of contested election returns/certificate of canvass. – The
following procedure is mandatory and shall be strictly observed by the
board of canvassers:cralaw:red
(a) Any candidate, political or coalition of political
parties contesting the inclusion or exclusion in the canvass of any
election return/certificate of canvass on any of the grounds authorized
under Article XX (Pre-Proclamation Controversies) or Sections 234, 235,
and 236 of Article XIX of the Omnibus Election Code
shall submit their oral objections to the chairman of the board of
canvassers at the time the questioned return/certificate is presented
for inclusion in the canvass. Such objection shall be recorded in
the minutes of the canvass.
(b) Upon receipt of any such objection, the board of
canvassers shall automatically defer the canvass of the contested
return/certificate and proceed to canvass those which are not
contested. However, before setting aside the contested
return/certificate, the board shall canvass the votes and prepare the
Certificate of Canvass for President, Vice-President, Senators, Members
of the House of Representatives and Party List.
With respect to the provincial/municipal offices, the votes
shall be tallied temporarily in a separate tally sheet, which shall be
signed by the board and watchers present.
(c) Simultaneous with the oral objection, the objecting
party shall submit his objections in writing in the form prescribed by
the Commission.
Within twenty-four (24) hours from and after the
presentation of such an objection, the objecting party shall submit the
evidence in support thereof, which shall be attached to the written
objections. Within the same period of twenty-four (24) hours,
after the presentation of the objection(s), any party may file a
written and verified opposition to the objection in the form prescribed
by the Commission attaching thereto supporting evidence, if any.
The board of canvassers shall not entertain any objection or opposition
unless reduced in writing in the prescribed form.
x x x
Upon receipt of the evidence, the board shall take up the
contested returns/certificates, consider the written objections thereto
and opposition, if any, and summarily and immediately rule
thereon. The board shall enter its ruling in the prescribed form
and authenticate the same by the signatures of all the members thereof.
x x x (Underscoring and emphasis supplied)
chan robles virtual law library
The above procedure is mandatory. It requires that a party
contesting a certificate of canvass of votes or election return has to
simultaneously make an oral and written objection to the inclusion
thereof during the canvass proceedings. Verbal objection alone is
not sufficient. A party has also to present evidence within
twenty-four hours (24) from such objection. This is exactly the
instruction of the Supreme Court in the case of Cordero vs. COMELEC, thus:cralaw:red
Clearly, not only must the
objecting party reduce his objections to writing in the form prescribed
by the Comelec; he must also present within 24 hours evidence in
support thereof. Under Subsection h, noncompliance with the
mandatory procedure shall result in the summary dismissal of the
appeal, as in this case. In the petitioner lies the burden of
proving that he has a prima facie case and of presenting, at the same
time, evidence that the exclusion he seeks will change the results of
the election. A party's mere allegation that an election return
is spurious, altered or manufactured does not automatically operate to
exclude it from the canvassing. (Underscoring supplied)
In sum, We find nothing illegal or unlawful in PBOC’s denial to the
oral and unsubstantiated objections of Fernandez to the COCV of San
Pablo City and Biñan since Fernandez neither made simultaneous
written objections at the time the COCVs of San Pablo City and
Biñan were being canvassed nor did he present evidence within
twenty-four (24) hours from making such objections.
Another issue that needs to be clarified is the alleged manifest errors
in the COCV and SOVP, which was belatedly raised by Fernandez in his
Memorandum after hearing and submission of responsive pleading,
involving not only San Pablo City and Biñan but also Calamba
City and the municipalities of Nagcarlan, Cabuyao, San Pedro and Sta.
Rosa. This gives Us the impression that Fernandez is now adopting
a different story which amounts to substantial amendment of his
pleading. This is not allowed since it violates the other
parties' right to due process and will only unduly prolong the
disposition of the instant pre-proclamation controversy. x x
x.[8]
chan robles virtual law library
WHEREFORE, the petition is DISMISSED.
The March 9, 2006 En Banc Resolution of the Commission on Elections in
SPC No. 04-105, denying petitioner’s motion for reconsideration of the
April 12, 2005 Resolution of the First Division dismissing petitioner’s
petition to annul private respondent Teresita Lazaro’s proclamation, is
AFFIRMED.
SO ORDERED.
Panganiban, C.J.,
Puno,
Quisumbing,
Sandoval-Gutierrez,
Carpio,
Austria-Martinez,
Corona,
Carpio-Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario,
Garcia, and
Velasco, Jr., JJ.
concur.
[1] Rollo, pp. 56-65. Penned by Chairman Benjamin S. Abalos, Sr. and
Commissioners Resurreccion Z. Borra, Florentino A. Tuason, Jr. and
Romeo A. Brawner.
[2] Id. at 27-44.
[3] Id. at 3-26.
[4] Perez v. Court of Appeals, G.R. No. 162580, January 27, 2006, 480 SCRA 411, 416.
[5] An Act Providing for Synchronized National and Local Elections and
for Electoral Reforms, Authorizing Appropriations Therefor, and for
Other Purposes.
[6] Siquian, Jr. v. Commission on Elections, 378 Phil. 182, 185-186 (1999).
[7] 382 Phil. 522, 532 (2000).
[8] Rollo, pp. 61-64.
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