G.R. No. L-28349. December 28, 1967
CONSUELO V. CALO, JOSE T. GONZALEZ, PASTOR D. AGO, GENARO B. ASIS AND VICENTE C. ROSALES, PETITIONERS, VS. HON. MANUEL L. ENAGE, AS DISTRICT JUDGE OF THE COURT OF FIRST INSTANC…
RUIZ CASTRO, J.:
This is a petition for certiorari, prohibition and
mandamus to annul the order dated December 1, 1967 of the respondent Judge
Manuel L. Enage of the Court of First Instance of Agusan, which order directs a judicial recount of the votes
cast certain municipalities in Agusan at the last
elections held on November 14, 1967 and restrains the provincial board of
canvassers from canvassing the election returns for the offices of Governor,
Vice Governor and board members of Agusan province.
The respondent judge issued the order on petition of the
respondents Rafael C. Aquino, candidate for Governor Basilisa K. Atega, candidate for
Vice Governor, and Sulpicio R. Lagnada,
Eduardo D. Mercado and Noli G. Cortel,
candidates for board members, all belonging to the Nacionalista
Party, in the last elections. In their
petition, the respondent candidates claimed that “the copies of the
election returns . . . pertaining to all the precincts involved in this
petition which are marked ‘COPY FOR THE NACIONALISTA PARTY’ give to the herein
petitioners [the respondents here] a different and larger number of votes than
the number of votes given to them in the corresponding copies of the same
statements of election returns transmitted to the Provincial Treasurer of Agusan . . . and the difference arising out of the
abovementioned discrepancies materially and substantially affects the results
of the election . . . to such an extent that instead of being declared losers
petitioners [the respondents here] deserve to be proclaimed the duly elected
provincial officials of Agusan.”
The present petitioners were the other candidates for the same
offices: Consuelo V. Calo for Governor, Jose T. Gonzalez
for Vice Governor, and Pastor D. Ago, Genaro B. Asia
and Vicente C. Rosales for board members.
All were NP unofficial candidates.
They contend that the respondent judge acted in excess of his
jurisdiction and with grave abuse of discretion in ordering a recount of the
votes even before the provincial board of canvassers had started canvassing the
returns, and that in any event the supposed discrepancy between the NP copy
and the provincial treasurer’s copy of the same returns from each of the
precincts in question as to the number of votes cast for the respondents is
not a ground for a judicial recount under section 163 of the Revised Election
Code.
In view of the extreme urgency of the petition, we issued on December 4, 1967 a temporary
restraining order, enjoining enforcement of the lower court’s writ of
preliminary injunction and the recounting of ballots, even as we allowed the
canvassing to proceed. We are now
informed that the canvassing was finished on December 13, 1967 although no proclamation has been held
pending decision of this case.
The central issue here posed is whether a judicial recount may
be ordered in case there is a variance between a copy of the election returns
in the hands of the provincial treasurer and another copy of the same returns
given to one of the major political parties.
Section 163 of the Revised Election Code states:
“When statements of a precinct are contradictory. -In case it appears to the provincial board
of canvassers that another copy or other authentic copies of the statement
from an election precinct submitted to the board gives to a candidate a
different number of votes and the difference affects the result of the
election, the Court of First Instance of the province, upon motion of the board
or of any candidate affected, may proceed to recount the votes cast in the precinct
for the sole purpose of determining which is the true statement or which is the
true result of the count of the votes cast in said precinct for the office in
question. Notice of such proceeding
shall be given to all candidates affected.”
The issue here is not new.
In Acuña v. Golez,[1]
this Court, resolving a similar question, unequivocally held:
“Section 150 of the Revised Election
Code provides that ‘immediately after the count, the Board of Inspectors shall
make, complete and sign a written statement thereof in quadruplicate‘
(underscoring ours.) The four (4) copies of this statement, otherwise
referred to in Section 151 as ‘election returns,’ must, pursuant to Section 152
of said Code, be distributed as follows: one copy shall be placed in the box
for valid ballots, another copy shall be delivered to the municipal treasurer,
the third copy shall be sent by registered mail to the provincial treasurer,
and the fourth shall be forwarded, likewise, by registered mail, to the
Commission on Elections. Pursuant,
however, to a resolution of the Commission on Elections in Case No. 488
thereof, the two (2) major political parties are provided with one (1) copy
each of the election return for each precinct .[2].
. .
“[I]n using the aforementioned phrase,
the framers of the Revised Election Code evidently had in mind the four
(4) copies mentioned in Section 150 thereof . . . . In other words, the
lawmakers could not have referred to any other copies, for no such copies were
prescribed in the Code.”
Indeed, it is now settled doctrine that the discrepancy which
justifies a judicial recount is such only as appears in the different copies of
the election returns required to be accomplished by section 150.[3]
Section 163 should be construed restrictively because of the special nature of
the authority conferred therein, and because otherwise that authority could be
utilized to delay the proclamation of the winning candidate to beyond the date
set for the beginning of the term of office of the position involved. The necessity of avoiding this contingency
becomes apparent when we consider that the effect of the delay is, in the case
of national offices for which there is no hold over, to leave the office
without any incumbent, and, in the case of local offices, whose incumbents may
hold over, to permit the losing candidate to extend his tenure, at the expense
and to the prejudice of the elected candidate.[4]
Any other discrepancy is not, therefore, a sufficient warrant for a judicial
recount.[5]
It may be added here that were the copy furnished to a political
party considered a basis for an action under section 163, untold opportunities
would be afforded a candidate to tamper with the contents of his party’s copy
and, on the basis of the artificial discrepancy created between his copy and
that of the provincial treasurer, demand a recount of the votes and thus delay
or even prevent the proclamation of his opponent. This is not to inveigh against either the
validity of the extra copies of the election returns or the wisdom of the
resolution of the COMELEC requiring their preparation. As this Court said in Acuña
the said resolution does not contravene any statute. On the contrary, additional copies in the
hands of the major political parties may have the general salutary effect of
discouraging attempts to tamper with the copies required by the Code owing to
the greater probability of detection of irregularities. The point is simply that the extra copies
cannot serve as a legal basis for comparison with any of those prescribed by
the Code for the purpose of a judicial recount.
The respondent judge’s order flies in the face of settled
interpretation of section 163 and should be stricken down.
ACCORDINGLY, the order of December 1, 1967 of the respondent judge is set aside,
and the respondent provincial board of canvassers is directed to proceed with
the proclamation of the winning candidates, at respondents’ cost.
Concepcion, C.J., Reyes, JBL, Dizon, Makalintal, Bengzon, Zaldivar, Sanchez,
Angeles and, Fernando, JJ., concur.
[1]
L-25399, Jan. 27, 1966.
[2]
In addition to the four copies prescribed in section 150, the Commission on
Elections now requires the preparation of three additional copies of election
returns, one for each of the Nacionalista and Liberal
parties and an advance copy for the municipal or city treasurer. See, e.g.,
Instruction for Boards of Inspectors for November 12, 1963, pp. 88-89.
[3] See,
e.g., Villacarlos v. Jimenez,
L-16437, Dec. 29, 1962; accord,
Diaz v. Reyes, L-25502, Feb.
28, 1965.
[4] Acuña v. Golez, supra,
note 1.
[5] Lewin v. Escalona,
L-22540, July 31, 1964 (discrepancy between copy of the returns and tally
sheet); Villacarlos v. Jimenez, supra,
note 3 (discrepancy between copy of the returns and certificate of canvass); Parlade v. Quitcho,
L-16259, Dec. 29, 1959 (discrepancy between copy of the returns and certificate
of canvass); cf. Javier v. Commission on Elections, L-22248, Jan.
30, 1965 (discrepancy between copy of the returns and tally board).