Precinct Minutes 90-A2 Precinct 90A of San Rafael completed the data (contested)
Envelope serial No. 015884
Envelope Seal - 0916966 (seal open)
ER seal - no seal
ER # 5301668
Valid Votes - 164
Spoil - 0
Excess - 0
Rejected - 0Atty. Palabrica asked if the result will be tallied separately.
Chairman Serrano: If it is a pre-proclamation issue, then I will separate. I am inviting you to house rules 6 & 8. You are alleging massive fraud and [tampering of ERs].
Atty. Palabrica: I did lump the reasons for this objection. [I] am asking if it's temporarily tallied.
Chairman Serrano: You alleged that the ER [was] obviously manufactured.
Atty. Palabrica: The ER was already prepared and that is why the ballot box was opened. The face of the ER [is] okey.
Chairman Serrano: Such ground is covered by regular protest.
Asked Lolita Ducanes, chairman and the third member. Are these your signatures? Are these the same election returns that you signed and placed on the ballot box?
Lolita Ducanes: Yes, it's my signature and they are the election returns that we signed.
Atty Palabrica: Asked why the ballot box was opened.
Lolita Ducanes: It was opened in the custody group.25 30-A26 At 2:13a.m. to 2:18 p.m. Precinct 30-A of Barangay Arado was opened and canvassed.Data
Envelope # 015811
Envelope Seal # 0915307 (seals sticking to envelope)
ER seal # - no inner seal
ER # 5301602
# of valid ballots in compartment for valid ballots - 162
# of spoil[ed] ballots - 0
# of excess ballots - 0
# of rejected ballots - 0Atty. Palabrica: had it noted that BEI of 30-A of Brgy.
Arado did not give a certificate of votes to the Lakas watchers. 58-A27 At 2:21 a.m. to 2:40 a.m., Precinct 58-A of Barangay Luan was opened and in good condition.
Data Envelope # 015854
Envelope Seal # 0916088
ER inner seal # - 0916087
ER # 5301633
# of valid ballots - 162
# of spoiled ballots - 0
# of excess ballots - 0
# of rejected ballots - 0 49-A28 At 2:40 a.m. to 2:48 a.m. Precinct 49A of Barangay
Camote was opened and canvassed.
Data
Envelope # 015803
Envelope Seal # 015803 - envelope partly good otherwise in good condition
ER seal # - 0915855
ER # 5301624
# of valid ballots - 167
# of spoil[ed] ballots - 0
# of excess ballots - 0
# of rejected ballots - 0 31-A29 At 2:55 a.m. to 3:05 a.m., Precinct 31-A of Barangay
Batug was opened and canvassed.
Envelope Serial # - 015808 (The envelope is torn a little at the side otherwise in good condition)
Envelope Seal # 0915327
ER seal # - 0915326
ER # 5301603
# of valid ballots - 180
# of spoil[ed] ballots - 0
# of excess ballots - 0
# of rejected ballots - 0Chairman Serrano: Called the BEI members:
BEI Chairman - Fatima Ychon
Poll Clerk - Jeralyn Peque,
Third Member - Noel Lagunzad. Chairman Serrano: Asked the BEI who prepared the election return.
BEI members: Replied they were the one who prepared the election return #5301603 of Brgy. Batug.
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:
1. Illegal composition or proceedings of the board of canvassers;
2. 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 the Omnibus Election Code;
3. The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and
4. When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate.
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; 3that 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.
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.41
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 x 47
Precinct No. Time of Presentation for Canvass/Oral Objection Grounds for Objection 30-A48 May 15, 2007; 6:15 a.m. Material defect 31-A49 May 15, 2007; 5:20 a.m. Ballot boxes open 49-A50 May 15, 2007; 5:20 a.m. Ballot boxes open 58-A51 May 15, 2007; 5:20 a.m. Ballot boxes open 90-A52 May 15, 2007; 6:30 p.m. Tampering; many erasures
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.
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 x55 (citations omitted)
Endnotes:
1 Rollo, pp. 63-71; penned by Commissioner Romeo A. Brawner and concurred in by Commissioner Resurrecion Z. Borra.
2 Id. at 72-76; penned by Commissioner Rene V. Sarmiento and concurred in by Commissioners Romeo A. Brawner, Nicodemo T. Ferrer, and Moslemen T. Macarambon.
3 Id. at 122-123.
4 Originally composed of Election Officer Lydia S. Camposano as Chairperson, Mr. Enrique Cabaobao as Vice-Chairman, and Ms. Joquinita P. Capili as Secretary.
5 Rollo, pp. 124-125.
6 Id. at 126-130.
7 Id. at 139.
8 Id. at 136-138.
9 Id. at 141.
10 Id. at 143-144.
11 The total number of votes cast for the petitioner was 8,915 votes while the total number of votes cast for the private respondent was 9,092 votes. The total number of votes covered by the contested election returns is 799 votes, of which 288 were credited to petitioner and 511 were credited to the private respondent, as follows:
Election Return | Precinct No. | Barangay | No of Contested Votes | |
| | | Sano | Que |
5301602 | 30-A | Arado | 42 | 118 |
5301603 | 31-A | Batug | 47 | 123 |
5301624 | 49-A | Camote | 74 | 87 |
5301633 | 58-A | Luan | 72 | 86 |
5301668 | 90-A | San Rafael | _53_ | _97_ |
TOTAL | | | 288 | 511 |
12 Minutes on the National, Provincial, and Local May 14, 2007 Elections of Dulag, Leyte, p. 2, Petitioner's Annex "U" (hereinafter, Minutes); rollo, pp. 284.
13 Id.
14 Id. at 3; id. at 285.
15 Id.
16 Minutes, p. 4; id. at 286.
17 Rollo, pp. 124-125.
18 Minutes, p. 4; id. at 286.
19 Id. at 8; id. at 290.
20 Id. at 9; id. at 291.
21 Id. at 10; id. at 292.
22 Id.
23 Id.
24 Id. at 12; id. at 292.
25 Id.
26 Id. at 14; id. at 296.
27 Handwritten Notes of MBOC Secretary Joaquinita Capili; Records, Vol. II, p. 45.
28 Minutes, p. 14, rollo, p. 296.
29 Id. at 14-15; id. at 310-311.
30 Id. at 15; id. at 197.
31 Records, Vol. I, pp. 1-45.
32 Id. at 55-93.
33 An Act Providing For Synchronized National And Local Elections And For Electoral Reforms, Authorizing Appropriations Therefor, And For Other Purposes (1991).
34 General Instructions for the Municipal/City/Provincial and District Board of Canvassers in Connection with the May 14, 2007 National and Local Elections (April 17, 2007).
35 Records, Vol. I, pp. 100-140.
36 Id. at 152-180.
37 Both petitioner and private respondent filed their respective Memoranda on August 28, 2007; Records, Vol. I, pp. 206-306. Acting Chairman Serrano filed his Memorandum on September 3, 2007, id. at 345-363; MBOC Members Capili and Cabaobao also filed a Memorandum on August 31, 2007, id. at 329-342.
38 Rollo, pp. 67-69.
39 Id. at 77-106.
40 Id. at 72-76.
41 See also Sections 233-236 of the Omnibus Election Code, which provide:
Sec. 233. When the election returns are delayed, lost or destroyed. - In case its copy of the election returns is missing, the board of canvassers shall, by messenger or otherwise, obtain such missing election returns from the board of election inspectors concerned, or if said returns have been lost or destroyed, the board of canvassers, upon prior authority of the Commission, may use any of the authentic copies of said election returns or a certified copy of said election returns issued by the Commission, and forthwith direct its representative to investigate the case and immediately report the matter to the Commission.
The board of canvassers, notwithstanding the fact that not all the election returns have been received by it, may terminate the canvass and proclaim the candidates elected on the basis of the available election returns if the missing election returns will not affect the results of the election.
Sec. 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 the 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.
Sec. 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, or otherwise not authentic, or were prepared by the board of election inspectors under duress, force, intimidation, or prepared by persons other than the member of the board of election inspectors, the board of canvassers shall use the 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 members of 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 nothing in the ballot box indicate that its identity and integrity have been violated, order the opening 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.
Sec. 236. Discrepancies in election returns. - In case it appears to the board of canvassers that there exists discrepancies in the other authentic copies of the election returns from a polling place or discrepancies in the votes of any candidate in words and figures in the same return, and in either case the difference affects the results of the election, the Commission, upon motion of the board of canvassers or any candidate affected and after due notice to all candidates concerned, shall proceed summarily to determine whether the integrity of the ballot box had been preserved, and once satisfied thereof shall order the opening of the ballot box to recount the votes cast in the polling place solely for the purpose of determining the true result of the count of votes of the candidates concerned.
42 Chu v. Commission on Elections, 359 Phil. 509, 517 (1999).
43 Omnibus Election Code, Section 246; Abayon v. Commission on Elections, G.R. No. 181295, April 2, 2009.
44 Bandala v. Commission on Elections, 468 Phil. 411, 418 (2004).
45 SEC. 20. Procedure in the Disposition of Contested Election Returns.
(a) Any candidate, political party or coalition of parties contesting the inclusion or exclusion in the canvass of any election returns on any of the grounds authorized under Article XX or Sections 234, 235 and 236 of Article XIX of the Omnibus Election Code shall submit their oral objection to the chairman of the board of canvassers at the time the questioned return 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 returns and shall proceed to canvass the returns which are not contested by any party.
(c) Simultaneous with the oral objection, the objecting party shall also enter his objection in the form for written objections to be 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 of the objection, which shall be attached to the form for written objections. Within the same period of twenty-four (24) hours after presentation of the objection, any party may file a written and verified opposition to the objection in the form also to be prescribed by the Commission, attaching thereto supporting evidence, if any. The board shall not entertain any objection or opposition unless reduced to writing in the prescribed forms.
The evidence attached to the objection or opposition, submitted by the parties, shall be immediately and formally admitted into the records of the board by the chairman affixing his signature at the back of each and every page thereof.
(d) Upon receipt of the evidence, the board shall take up the contested returns, consider the written objections thereto and opposition, if any, and summarily and immediately rule thereon. The board shall enter its ruling on the prescribed form and authenticate the same by the signatures of its members.
(e) Any party adversely affected by the ruling of the board shall immediately inform the board if he intends to appeal said ruling. The board shall enter said information in the minutes of the canvass, set aside the returns and proceed to consider the other returns.
(f) After all the uncontested returns have been canvassed and the contested returns ruled upon by it, the board shall suspend the canvass. Within forty-eight (48) hours therefrom, any party adversely affected by the ruling may file with the board a written and verified notice of appeal; and within an unextendible period of five (5) days thereafter, an appeal may be taken to the Commission.
(g) Immediately upon receipt of the notice of appeal, the board shall make an appropriate report to the Commission, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report.
(h) On the basis of the records and evidence elevated to it by the board, the Commission shall decide summarily the appeal within seven (7) days from receipt of said records and evidence. Any appeal brought before the Commission on the ruling of the board, without the accomplished forms and the evidence appended thereto shall be summarily dismissed.
The decision of the Commission shall be executory after the lapse of seven (7) days from receipt thereof by the losing party.
(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.
46 378 Phil 182 (1999). .
47 Id. at 185-186.
48 Id.
49 Minutes, p. 3, rollo, p. 285.
50 Id.
51 Id.
52 Id. at 4, id. at 286.
53 Rollo, pp. 124-125.
54 Dipatuan v. Commission on Elections, G.R. No. 86117, May 7, 1990, 185 SCRA 86, 93.
55 Rollo, pp. 73-75.
56 Constitution, Art. IX-C, Sec. 2(1).
57 COMELEC Resolution No. 7877, In the Matter of the Accreditation of the Dominant Majority Party, the Dominant Minority Party, and the Other Six (6) Accredited Major Political Parties in the May 14, 2007 National and Local Elections (May 2, 2007).
58 In Loong v. Commission on Elections, 326 Phil. 792-793 (1996), we held that:
While, however, the COMELEC is restricted, in pre-proclamation cases, to an examination of the election returns on their face and is without jurisdiction to go beyond or behind them and investigate election irregularities, the COMELEC is duty bound to investigate allegations of fraud, terrorism, violence and other analogous causes in actions for annulment of election results or for declaration of failure of elections, as the Omnibus Election Code denominates the same. Thus, the COMELEC, in the case of actions for annulment of election results or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters' signatures and fingerprints in order to determine whether or not the elections had indeed been free, honest and clean. Needless to say, a pre-proclamation controversy is not the same as an action for annulment of election results or declaration of failure of elections.