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EN BANC G.R. No. 182221 : February 3, 2010 THEMISTOCLES A. SAÑO, JR., Petitioner, v. COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF DULAG, LEYTE, FERDINAND A. SERRANO, in his capacity as Acting Chairman of the Municipal Board of Canvassers of Dulag, Leyte, and MANUEL SIA QUE, Respondents. D E C I S I O N DEL CASTILLO, J.: This case, with records spanning nearly 2,000 pages, revolves around the simple question of what issues may be properly alleged in a pre-proclamation controversy. Petitioner has valiantly and passionately argued his case and invoked every available ground to suspend and annul a proclamation validly made. Unfortunately, argument is not evidence; advocacy is not legitimacy. The mere invocation of the grounds of a pre-proclamation controversy, without more, will not justify the exclusion of election returns which appear regular and authentic on their face. This Petition for Certiorari filed pursuant to Rule 65 in relation to Rule 64 of the Rules of Court, assails the Resolution1cralaw dated October 3, 2007 of the Commission on Elections (COMELEC) First Division in SPC Case No. 07-191, as well as the COMELEC En Banc's Resolution2cralaw dated February 12, 2008. Petitioner Themistocles A. Saño (Saño) was the official candidate of Lakas Christian Muslim Democrats (LAKAS-CMD) for Municipal Mayor of the Municipality of Dulag, Leyte during the May 14, 2007 synchronized national and local elections.3cralaw Private respondent Manuel Sia Que (Que) ran for the same position under the auspices of the Liberal Party. Petitioner's Factual Allegations Saño alleged that after the casting and counting of votes, at about midnight of May 14, 2007, a man was seen carrying a ballot box that was not locked; he then inserted certain documents in said ballot box, took the aluminum seal, sealed the box, and then turned it over to the Reception Group. The election returns (ERs) allegedly affected by this anomalous activity were ER Nos. 5301624, 5301603, 5301633, 5301602, and 5301668 (the contested ERs) for Precinct Nos. 49-A, 31-A, 58-A, 30-A, and 90-A, respectively (the questioned precincts). During the canvassing at the Dulag Municipal Hall, Saño sought to have the contested ERs excluded on the following grounds: massive fraud, illegal proceedings, and tampered/falsified and obviously manufactured returns. He alleged that timely oral objections were made, and the written Petition for Exclusion was filed with the Municipal Board of Canvassers (MBOC)4cralaw on May 15, 2007 at 6:50 p.m.5cralaw together with affidavits prepared by his brother, Tancredo A. Saño, and a certain Peter C. Alicando.6cralaw Upon the filing of the Petition for Exclusion, canvass of the contested ERs was deferred. Saño further alleged that in the morning of May 16, 2007, Lydia Camposano (Camposano), Election Officer for Dulag, and Chairperson of the MBOC, was overheard calling a certain "sir" over the telephone to ask for a ruling. The telephone conversation was video recorded by Wilfredo O. Lazar (Lazar), who executed an affidavit attesting to said occurrence.7cralaw Saño, through counsel, then verbally moved for the inhibition of Camposano as MBOC Chairman on the ground of bias and for prejudgment of the election results. Camposano allegedly acknowledged that she was talking to her superior, Atty. Jose Nick Medros, Director III of Region VIII and Chairman of the Leyte Provincial Board of Canvassers, but declined to inhibit herself until she was ordered to do so by her superiors. The canvassing continued. At around 9:00 p.m. of May 16, 2007, Saño filed his written Petition for Inhibition together with the affidavit of Lazar, reiterating his request for the inhibition of the MBOC Chair.8cralaw At midnight of May 16, 2007, Camposano inhibited herself and declared the canvassing temporarily adjourned. At around 5:00 p.m. of May 17, 2007, Saño received a copy of the COMELEC Regional Office's Memorandum designating Ferdinand Serrano (Serrano) as the Acting Election Officer and MBOC Chairperson.9cralaw Canvassing resumed at about 6:00 p.m. of May 17, 2007, during which Serrano verbally ruled that the contested ERs would be opened. Serrano promised that this ruling would be put in writing within 24 hours. Thereafter, petitioner, through counsel, filed a Notice of Appeal at 5:00 a.m. of May 18, 200710cralaw covering the contested ERs. Finally, Saño claimed that instead of suspending the canvass as required by law and the canvassing rules, Serrano proceeded to hastily open and canvass the contested ERs. Despite the filing of petitioner's Notice of Appeal, and the fact that the exclusion of the contested ERs would materially affect the results of the election,11cralaw the MBOC neither made a written ruling nor elevated the appeal to the COMELEC together with the MBOC's report and records of the case. Instead, the MBOC proclaimed Que as Municipal Mayor. Private Respondent's Factual Allegations On the other hand, Que alleged that in the early morning of May 15, 2007, the MBOC of Dulag, Leyte, convened and started to canvass the ERs.12cralaw At around 3:46 a.m. of May 15, 2007, the ER from Precinct No. 30-A was temporarily set aside because of lack of data on the number of registered voters, voters who actually voted, and excess and rejected ballots. At the time that this ER was opened, no objection to its inclusion was made.13cralaw At around 6:15 a.m. of May 15, 2007, the Board of Election Inspectors (BEI) from Precinct No. 30-A appeared before the MBOC to complete the data. This time counsel for Saño complained that the LAKAS-CMD copy had imprints but BEI Chairperson Ruel Congzon explained that the imprints were due to the carbonized duplicate forms, and that the copies given to the various political parties were borrowed by the watchers so they could copy the election results. Not finding the explanation satisfactory, counsel for petitioner moved for the exclusion of said ER because of material defects in the return. Camposano ruled that the ER from Precinct No. 30-A would be set aside until the submission of petitioner's written objection.14cralaw Meanwhile, at around 5:20 a.m. of May 15, 2007, petitioner's counsel verbally moved for the exclusion of the ERs from Precinct Nos. 31-A, 49-A, and 58-A on the ground that the ballot boxes were opened. The ERs were set aside and the members of the BEI from said precincts were summoned to appear before the MBOC.15cralaw At around 6:30 p.m. of May 15, 2007, counsel for petitioner likewise orally objected to the inclusion of the ER from Precinct No. 90-A on the ground that it had been tampered with and contained many erasures.16cralaw At 6:50 p.m. of May 15, 2007, petitioner's counsel submitted a written Petition for Exclusion of the five contested ERs.17cralaw Canvass of the contested ERs was deferred until the submission of Que's comment. On May 16, 2007 at 10:49 a.m., Que submitted his written Opposition .18cralaw At around 9:17 p.m. of May 16, 2007, petitioner filed a Petition for Inhibition of Camposano.19cralaw Subsequently, at 12:30 a.m. of May 17, 2007, Camposano manifested that she would inhibit herself as MBOC Chairperson.20cralaw At 1:12 a.m. of May 17, 2007, canvassing was temporarily adjourned to await the appointment of a new MBOC Chairperson.21cralaw Canvassing resumed at 5:55 p.m. of May 17, 2007, when the MBOC was reconvened with Serrano as Acting Chairperson22cralaw at which time, 25 precincts were not yet canvassed. Serrano explained that he was required by law to finish the canvass, and that the BEIs assigned to the various questioned precincts would be summoned. He also stated that "these allegations cant be determined if we wont open the election returns x x x the BOC will ascertain if the election return has been tampered [with] . We will see if statistical data of ballots are filled out and [ask] the BEI to correct the statistical data about the ballots which were not correct".23cralaw While the ERs were being canvassed, counsel for petitioner did not immediately manifest her intention to appeal the ruling on the canvassing of ER in the questioned precincts. The Minutes of the Canvass provide:
At 3:00 a.m. of May 18, 2007, all ERs for the municipality had been canvassed and the canvassing was ordered terminated.30cralaw COMELEC Proceedings On May 28, 2007, petitioner filed a Petition for Annulment of Proclamation and/or Proceedings of the Municipal Board of Canvassers of Dulag, Leyte, before the COMELEC, which was docketed as SPC Case No. 07-191 and raffled to the First Division.31cralaw This petition was amended on July 12, 2007 by impleading Que as a necessary party.32cralaw In the meantime, Que assumed his position on June 30, 2007. In his petition, Saño argued that the MBOC violated Section 20, Republic Act (RA) No. 716633cralaw and Section 39 of COMELEC Resolution No. 7859.34cralaw Petitioner also sought to exclude the contested ERs from the canvass, on the ground that these were tampered with or obviously manufactured. Finally, he also sought that he be declared and proclaimed, after the exclusion of the contested ERs, as the winning candidate for the position of Municipal Mayor of that municipality. Que filed his Answer to the petition on July 26, 2007.35cralaw The MBOC, through Serrano, filed a separate Consolidated Answer dated July 25, 2007.36cralaw After hearing the case on August 1 and 13, 2007, the COMELEC First Division directed the parties to submit their respective memoranda.37cralaw Thereafter, the COMELEC issued its Resolution dated October 3, 2007 upholding the proclamation of Que:38cralaw x x x A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235, and 236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody and appreciation of election returns. On the other hand, Section 243 of the Omnibus Election Code enumerates the issues that may be raised in a pre-proclamation controversy, viz:
It is likewise settled that the above enumeration of the grounds that [many] be properly raised in a pre-proclamation controversy is restrictive and exclusive. In the case at bar, as borne out by the records, petitioner anchors his petition for the exclusion of the election returns from Precinct Nos. 49A, 31A, 58A, 31A, and 90A on the following grounds: that the election returns were (1) obviously manufactured; (2) tampered or falsified; [3] that there was massive fraud; and [4] illegal proceedings. In support thereto, petitioner attached the affidavits of his two (2) supporters, who attested that they saw open ballot boxes from Precinct Nos. 49A, 31A, and 58A. A painstaking examination of the records, however, shows that petitioner miserably failed to substantiate his allegations that the election returns were obviously manufactured, tampered with, that massive fraud attended the preparation thereof, and that the proceedings of the board were illegal. There is an avalanche of jurisprudence which states that to justify the exclusion of election returns, the allegations that the election returns were obviously manufactured must be evident from the face of the said documents. In the case at point, however, a meticulous examination of the contested election returns copies for the Commission, as well as the copy for the dominant majority party indubitably showed that there is neither a compelling nor cogent reason to warrant their exclusion. In the same vein, petitioner failed not only to adduce evidence but [also[ to prove his allegation of massive fraud or illegality of the proceedings of the board. A contrario, the MBoC had done nothing [amiss. Rather it tolerated] maximum x x x liberal interpretation of election laws in favor of the petitioner for, despite the clear absence of an issue cognizable as a pre-proclamation controversy and non-compliance with the rule on submission on petitions or objections before it, the board both under the chairmanship of Camposano and Serrano [allowed] the petitioner x x x to submit his petition. [It also addressed] the issues/concerns raised, as shown in the Minutes of the Proceedings of the Board. The Board is correct in not giving credence to petitioner's petition for exclusion [of the questioned returns] as it has been shown that there are no valid grounds raised thereon which falls within the ambit of Section 234 of the Election Code. Petitioner moved for reconsideration39cralaw but the motion was denied by the COMELEC En Banc on February 12, 2008.40cralaw Hence, this petition. The Parties Arguments Petitioner insists that all five contested ERs were written by only one person, and these ERs were surreptitiously presented before the MBOC. Thus, he argues that the issues raised before the MBOC, namely, that the contested ERs were tampered with and/or falsified, obviously manufactured, and subject of massive fraud, are pre-proclamation controversies as defined in Section 241 of the Omnibus Election Code and fall within the contemplation of Section 243(b) of said Code. As such, the contested ERs should have been excluded from the canvass. Consequently, the MBOC's proclamation of Que violated Section 39 of Commonwealth Act No. 7859 and Section 20 of RA 7166. On the other hand, Que argues that the allegations raised by petitioner on the contested ERs are not proper in a pre-proclamation controversy; that petitioner failed to substantiate his claim that the contested ERs were obviously manufactured, tampered with, or falsified; and that petitioner failed to follow the strict and mandatory procedure under Section 20 of RA 7166 and COMELEC Resolution No. 8969 for manifesting an appeal. Our Ruling The petition is without merit. A pre-proclamation controversy, as defined in Batas Pambansa (BP) Blg. 881, otherwise known as the Omnibus Election Code of the Philippines, is: any question pertaining to or affecting the proceeding of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appearance of the election returns.41cralaw Procedural Matters It is settled that a pre-proclamation controversy is summary in character;42cralaw indeed, it is the policy of the law that pre-proclamation controversies be promptly decided, so as not to delay canvass and proclamation.43cralaw The Board of Canvassers (BOC) will not look into allegations of irregularity that are not apparent on the face of ERs that appear otherwise authentic and duly accomplished.44cralaw Consistent with the summary character and limited scope of a pre-proclamation controversy, Section 20 of RA 7166 lays down the procedure to be followed when ERs are contested before the BOC.45cralaw Compliance with this procedure is mandatory, so as to permit the BOC to resolve the objections as quickly as possible. Thus, we held in Siquian, Jr. v. Commission on Elections46] that: 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 feel 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. x x x47] Section 20 of RA 7166 and Section 36 of COMELEC Resolution 2962 provide that any candidate may contest the inclusion of an ER by making an oral objection at the time the questioned return is submitted for canvass; the objecting party shall also submit his objections in writing simultaneously with the oral objections. The BOC shall consider the written objections and opposition, if any, and summarily rule on the petition for exclusion. Any party adversely affected by such ruling must immediately inform the BOC if he intends to appeal such ruling. After the BOC rules on the contested returns and canvasses all the uncontested returns, it shall suspend the canvass. Any party adversely affected by the ruling has 48 hours to file a Notice of Appeal ; the appeal shall be filed within five days. Upon receipt of the notice of appeal, the BOC will make its report to the COMELEC, and elevate the records and evidence. Moreover, pursuant to Section 235 of the Omnibus Election Code, in cases where the ERs appear to have been tampered with, altered or falsified, the COMELEC shall examine the other copies of the questioned returns and, if the other copies are likewise tampered with, altered, falsified, or otherwise spurious, after having given notice to all candidates and satisfied itself that the integrity of the ballot box and of the ballots therein have been duly preserved, shall order a recount of the votes cast, prepare a new return which shall be used by the BOC as basis for the canvass, and direct the proclamation of the winner accordingly. Based on the records of this case, we find that petitioner failed to timely make his objections to the contested ERs. The minutes of the proceedings before the MBOC reveal that the contested ERs were presented for inclusion in the canvass, and then orally objected to by the petitioner, at the following times:
However, only one written petition for exclusion was filed for the five contested ERs at 6:50 p.m. of May 15, 2007.53cralaw Of course the law does not intend that election lawyers submit their written objections at exactly the same second as their oral manifestation; however, a lapse of over 12 hours, long after the ERs have been presented for canvass, is simply inexplicable and unacceptable. It is also irregular that counsel for petitioner lumped all the objections into one petition for exclusion. We recognize that this is commonplace among election practitioners, intended for the convenience of the advocate. However, in cases like these, where each ground for exclusion is separate and distinct, merging written objections leads to unnecessary chaos in proceedings before the MBOC, and is here - as a disservice to the clients. No evidence that the election returns were falsified or tampered with. While we are willing to overlook the procedural lapses committed by the petitioner his manifestation and subsequent Notice of Appeal do not serve to overturn the assailed Resolutions. We find that the MBOC did not err in proclaiming the private respondent, since the unsubstantiated issues raised by the petitioner were not proper for a pre-proclamation controversy. As we explained, claims that contested ERs are obviously manufactured or falsified must be evident from the face of the said documents themselves.54cralaw But counsel for petitioner herself admitted that "on their face", the ERs were "okey". Contrary to petitioner's passionate remonstrations, there is absolutely no indication that the contested ERs were falsified or tampered with. As such, there was no valid ground to delay the proclamation. Petitioner anchors his claim of falsification and tampering on the allegation that the genuine ERs were replaced with manufactured returns, as evidenced by the purported similarity in handwriting of the contested ERs. Essentially, petitioner argues that the contested ERs cannot be trusted because all five of the contested ERs were prepared by one person; thus, no copy of the return can be trusted and there must be a recount of the ballots. He claims that the copies of the questioned election returns for both the dominant majority party as well as submitted to COMELEC and that of the dominant minority party, are duplicate copies of the original which are equally tainted with irregularity. Unfortunately, petitioner has failed to substantiate these allegations. On this, the COMELEC En Banc ruled: x x x First, We cannot give due credence to the affidavits of Mr. Peter Alicando and Mr. Tancredo Saño considering the infirm nature of affidavits. Second, affiant Saño is the brother of herein petitioner and his affidavit may most likely be considered as self-serving. In Salafranca v. Philamlife (Pamplona) Village Homeowners Association, Inc., the Supreme Court held: "It is settled that no undue importance should be given to a sworn statement of affidavit as piece of evidence because, being taken ex parte, an affidavit is almost always incomplete and inaccurate". Nevertheless, the crux of the affidavits above-mentioned pertains to the alleged opening of a ballot box by a man who placed several documents therein. While a picture was attached to show a person purportedly placing something inside a ballot box, it is not safe to assume that some irregularity indeed took place. What is worth noting is the fact that while petitioner claims massive fraud and tampering, the pieces of evidence only show a single ballot box being opened by an unknown person that is for one (1) precinct alone and definitely not for five (5) precincts as claimed by the petitioner. This notwithstanding, it is submitted that the ground relied upon may best be addressed in a protest case. x x x x Finally, an examination of the contested election returns will show that the same appear to be regular and devoid of any signs of tampering or that the same were manufactured. The allegation that the same were written by one hand does not hold water. x x x55cralaw (citations omitted) Absent any clear showing of grave abuse of discretion, this Court is bound to rely on the findings and conclusions of the COMELEC - the authority tasked by the Constitution to administer and enforce election laws.56cralaw At any rate, even if we take a second look at the facts, petitioner has still not proven that the ERs were spurious, falsified, or manufactured. Consider the following: First, LAKAS-CMD was the dominant majority party in 2007.57cralaw As such, its watchers would have been given a copy of the ERs in the questioned precincts by the BEI itself. It was never claimed that LAKAS-CMD never received its copy of the ERs. It seems rather incredulous, therefore, that ALL the ERs from the questioned precincts were allegedly surreptitiously replaced. Second, official watchers from the camps of both LAKAS-CMD and petitioner had the opportunity to take down the tally of votes and obtain a Certificate of Votes from the BEI. Despite this, there has been no allegation that the votes recorded in favor of petitioner were not the true votes cast in the election. Third, the members of the BEI from the questioned precincts themselves affirmed that they prepared the contested ERs. Fourth, petitioner never deigned to present any proof on his claim of similarity in handwriting no expert opinions, no testimony, no technical examination. Unfortunately, it is not at all evident from the returns that these were manufactured or fabricated. Unlike a pre-proclamation controversy, the annulment proceedings before the COMELEC were not summary in character;58cralaw petitioner had every opportunity to ventilate his case and substantiate his allegations before the Commission below. This notwithstanding, petitioner failed to present any evidence sufficient to overcome the presumption that the contested ERs were valid. WHEREFORE, the Petition for Certiorari is hereby DISMISSEDfor lack of merit. The Resolution of the Commission on Elections First Division dated October 3, 2007 in SPC Case No. 07-191 dismissing petitioner's Petition for Annulment of Proclamation and/or Proceedings of the Municipal Board of Canvassers of Dulag, Leyte , and the Resolution of the Commission on Elections En Banc dated February 12, 2008 denying petitioner's motion for reconsideration, are AFFIRMED. SO ORDERED. MARIANO C. DEL CASTILLO WE CONCUR: REYNATO S. PUNO
JOSE C. MENDOZA 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 Endnotes:
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