RASID LUCMAN, PETITIONER, VS. MACACUNA DIMAPORO AND THE PROVINCIAL BOARD OF CANVASSERS OF LANAO DEL SUR, RESPONDENTS.

The petition herein purports to be an “appeal by
certiorari” from a resolution of the Commission on Elections.  The petition was, at first, denied; but, on
motion for reconsideration, the Court granted the same, required the
respondents to answer said petition – which was regarded as one for certiorari,
under Rule 65 of the Rules of Court, to expedite the disposal of the case, in
view of the public interest involved therein – and issued a temporary
restraining order, effective immediately and until further orders from the
Court.  Respondents filed their
respective, answers, to which Petitioner replied, after which the parties were
heard on oral argument, and then filed their respective memoranda.

Rasid Lucman
– hereinafter referred to as Petitioner – was the official Liberal Party
candidate for the House of Representatives in the lone congressional district
of Lanao del Sur, during
the general elections held on November
11, 1969.  Macacuna Dimaporo – hereinafter
referred to as Respondent – was then the official Nacion­alista
Party candidate for the same office.

On November 14, 1969, Petitioner filed with the Commission on
Elections a petition alleging that the precinct books of voters for the
municipality of Tubaran, Lanao
del Sur, had been stolen on the eve of the elections,
for which reason the Special Action Team of the Commission in said province had
urged the Commission to recommend to the President the suspension of the
elections in Tubaran, and that, although no elections
had been held therein, there were election returns therefor,
which, accordingly, are fic­titious or obviously manufactured, and praying that
the provincial board of canvassers – hereinafter referred to as the Board – be
ordered to suspend the canvass of said returns, as well as the proclamation of
the winning candidate for the House of Represen­tatives in Lanao
del Sur.

Acting upon said petition, the Commission, in a resolution, dated
November 15, 1969, ordered
the Board to refrain from canvass­ing the aforementioned election returns.  This resolution was, however, amended by
another, of November 21, 1969, directing the Board to proceed with the canvass
of all the returns for Lanao del Sur
and requiring the parties to interpose their objections before said Board,
which should, however, withhold the proclamation of the winning candidate, to
enable said parties to elevate the matter, either to the Commission, or to the
courts.

As the Board met at Camp Crame, Quezon City, on Novem­ber 25, 1969, and began the canvass,
Petitioner moved, in writing, for the exclusion therefrom
of the returns for all of the sixteen (16) precincts of Tubaran
and the twenty-nine (29) precincts of Balaba­gan, as
well as those of two (2) precincts (Nos. 6 and 8) of Balin­dong,
two (2) (Precincts Nos. 8 and 11) of Binidayan, and
one (1) (Precinct No. 18) of Lumba-Bayabao.  During the canvass, Petition­er objected,
moreover, to the inclusion in the canvass of a number of other returns. On
November 29, he filed a supplemental petition for the exclusion of the returns,
not only for the precincts mentioned in the original petition, but, also, for
additional precincts – name­ly, two (2) (Precincts Nos. 7-A and 8) of Bacolod-Grande, fourteen (14) (Precincts Nos. 1, 1-A, 2,
2-A, 3, 3-A, 4, 4-A, 5, 5-A, 9, 10, 11-A and 11-B) of Balindong,
eleven (11) (Precincts Nos. 1, 2, 3, 4, 4-A, 5, 6, 7, 9, 9-A and 10) of Binidayan, three (3) (Precincts Nos. 6, 7 and 9) of Madamba, one (1) (Precinct No. 8) of Malabang,
and two (2) (Precincts Nos. 2-A and 5) of Pualas.

Said petitions for exclusion were soon denied by the Board, in
view of which Petitioner sought, on December
6, 1969, a review of its action by the Commission.

On December 12, 1969, the latter held that the rule laid down in Lagumbay v. Comelec1
authorizing the exclusion of returns, upon the ground of statistical
improbability, where 100% of the number of voters registered or votes cat are
credited exclusively to all the candidates of one political party, without a
single vote for any of the other candidates is in applicable to the returns
contested by the Petitioner, and, consequently; sustained the action of the
Board fn rejecting his objection, upon the ground of statistical improbability
to the returns for the following precincts, to wit:

PUALAS	–	Precincts Nos. 2-A and 5;
MALABANG	–	Precinct No. 8;
MADAMBA	–	Precincts Nos. 6, 7 and 9;
BINIDAYAN	–	Precinct No. 4-A;
BALINDONG	–	Precincts Nos. 11-A and 11-B;
TUBARAN	–	Precinct No. 15.

For the same reason, Petitioner’s objection to the inclusion in the
canvass of the returns for the following precincts was, simi­larly, overruled:

TUBARAN	–	Precincts Nos. 1-14 and 16;
BALABAGAN	–	All the 29 precincts;
BALINDONG	–	Precincts Nos. 1, 1-A, 2, 2-A, 3, 3-A, 4, 4-A, 5, 5-A, 6, 8, 9, 10 and 11;
BINIDAYAN	–	Precincts Nos. 1, 2, 3, 4, 5, 6, 7, 8,  9, 9-A, 10 and 11;
BACOLOD-GRANDE	–	Precincts Nos. 7-A and 8;
LUMBA-BAYABAO	–	Precinct No. 18;
BAYANG	–	Precinct No. 10-A.

but, he having objected to these returns
upon other additional grounds – not being in due form and other irregularities
in its preparation – the Commission decided to examine the Provincial
Treasurer’s copies thereof.

On December 17, 1969,
it, moreover, created a Committee –

” x x x to
examine all the returns questioned on the ground that they were not in due
form, not signed by the proper officials or otherwise, defective, said
Committee to examine the returns one by one in the presence of the representative
of the parties, to receive their evidence and note their objections and
thereafter to submit its report to the Commission not later than December 20,
1969. Said Committee submitted its report to the Commission which set the same
for hearing on December 29, 1969.  After hearing the arguments and manifestation
of both parties, the Commission approve in toto
said report and ordered further investigation of the returns for Precinct Nos.
8, 13 and 14, Tubaran; Precinct Nos. 8, 9 and 14, Balabagan.  In view
of the finding of the Committee that the returns for Precinct Nos. 10 and 11, Balindong, Precinct Nos. 6 and 9-A, Binidayan,
and Precincts Nos. 7 and 8, BACOLOD-GRANDE were tampered with, the Commit­tee
resolved to examine the copies of said returns in order to ascertain the
existence of a serviceable (copy) of said returns. The Commission also ordered
the re­view of the returns for Precinct No. 9, Balindong,
in view of the finding of the Committee that said election return was not
signed by the members of the Board of Inspectors and, therefore, not a properly
accomplished return.”1

On motion of the petitioner, the Commission, likewise, ordered,
on December 18, 1969, that the ballot boxes of Precincts Nos. 6, 7, 8 and 9 of Balindong, and Precincts Nos. 8, 9, 9-A, 10 and 11 of Binidayan, be brought to its offices in Manila.  Soon later, or on December 24, 1969,
Petitioner moved that subpoenae and subpoenae duces tecum be issued to the election registrars of Tubaran, Balindong, Balabagan and Binidayan, directing
them to bring with them the CE Forms Nos. 242 and 263 specified in the motion, and testify before the
Commission.  The next day, Petitioner
filed another motion for the issuance of subpoenae to
the members of all boards of election inspectors of Tubaran
and Bala­bagan, and those of specified precincts of Balindong, Binidayan, Bacolod-Grande, Malabang, Bayang and Madalum, summoning
them to Manila to testify before the Commission, “at government ex­pense,
and to allow the Petitioner to present other witnesses.”

These motions for the issuance of subpoenae
and subpoenae duces tecum were denied by the Commission on December 29, 1969.  The Commission, moreover, ordered its
aforementioned Committee to conduct further investigations with respect to
certain precincts4 and the opening of the ballot
boxes of Tubaran. 
It summoned the election registrar of Balabagan
to testify before the Commission, and denied Petitioner’s motion for the
opening of the ballot boxes of said municipality, upon the ground that the reasons
adduced in support thereof are proper for an election protest, as well as
directed the Board to reject the return for Precinct No. 9 of Balindong, the same not being signed by the members of its
board of inspectors, arid reset the case for hearing on January 6, 1970,
“to give the parties opportunity to elevate any of the above rulings to
the Supreme Court.”

On January 3, 1970,
Petitioner filed with this Court a peti­tion, docketed as G. R. No. L-31430,
for certiorari and mandamus, with preliminary injunction, against the
Commission, the Board and herein Respondent, Macacuna
Dimaporo. 
Petitioner prayed therein:

“(a)  that preliminary injunction be issued ex
parte, restraining the COMELEC from continuing
the hearing of the case entitled ‘LUCMAN vs. DIMAPORO, et al.,‘ pending before
it, scheduled on January 6, 1970 at 2:30 p.m., and thereafter, until further
orders of the Court, upon a bond as may be fixed hereof;

“(b)  that after hearing, judgment be rendered annulling
paragraphs 2 and 3 on page 3 of the COMELEC resolution dated December 29, 1969 in said case;

“1)   directing the COMELEC to open the ballot
boxes of TUBARAN and BALABAGAN, and to make physical count of the ballots
inside the ballot boxes, if any, and together with the tally sheet therein,
ascertain the true results of the elections held thereat, if possible, or rule
as the evidence and the law may warrant;

“2)   to grant the motion of petitioner to subpoena
the Election Registrars of BALABAGAN, TUBARAN, BALIN­DONG; and BINIDAYAN, and
to bring with them CE FORMS Nos. 24 and 26 used during the election last
November 11, 1969;

“3)   to subpoena the Boards of Inspectors of
TUBARAN and BALABAGAN, and to allow petitioner to addue
other testimonial evidence, or to cross-exa­mine the witnesses against him, at
the hearing of the said case.”

 In a minute resolution of
this Court, dated January 6, 1970,
said petition in G.R. No. L-31430 was, however, dismissed for “lack of
merit.” A motion for reconsideration of said resolution, or, at least,
modification thereof – so as to state that the dismissal was due, not to
“lack of merit,” but to its “being premature” was denied on
January 14, 1970.

Prior thereto, or on January 5, 1970, Petitioner had filed a
second supplemental petition asking that “in addition to the prayer in the
Supplemental petition for review x x x the true votes in Precincts 10 and 10-A of Bayang, x x x Precincts 8 and 9-C of Malabang, Precincts 8 and 9-A of Binidayan
and Precincts 10 and 11 of Balindong x x x be entered in the canvass in lieu of the tam­pered votes
thereof.” Inasmuch as the aforementioned petitions for exclusion were
based upon several grounds – namely:  (1)
sta­tistical improbability; (2) formal defects and other irregularities in the preparation of the returns; (3)
tampering thereof; (4) falsity of the returns, there having allegedly been no
election; and (5) returns prepared at gunpoint – the Commission decided to
dispose of the same by process of elimination.

On January 13, the Commission opened the ballot boxes of all
precincts of Tubaran and found no ballots in five (5)
of them – Precincts Nos. 3, 6, 7, 12 and 12-A – although Respondent main­tains,
as regards Precincts Nos. 3, 6 and 7, that the Commission had merely refused to
open any of the envelopes found in the ballot boxes thereof – because none of
said envelopes bore, outside thereof,
an inscription to the effect that they contain “counted ballots” –
despite his request that the envelopes be opened be­cause there may be ballots
inside the same.  The Commission,
likewise, approved a supplemental report, submitted by the afore­mentioned
Committee, reiterating the findings in its original report of December 20,
1969, and ruled that the defects pointed out by the Petitioner did not affect the
integrity of, or overcome the
presumption of regularity with respect to, the returns for Precincts Nos. 8, 13
and 14 of Tubaran,
8 of Balindong, and 9 and 14 of Balabagan.

On the same date, Petitioner invited attention to the fact that,
in canvassing the votes for Senators, the Commission had rejected, on December
2, 1969, upon the ground of being obviously manufactured, the returns for
Precincts Nos. 3, 4-B and 15 of Balabagan and 3 of Tubaran, and set aside, owing to patent irregularities in
their preparation, the returns for Precincts Nos. 9 and 11 of Balindong.

On January 16, 1970,
the Commission rejected Petitioner’s objection to these returns, except as
regards that for Precinct 11-B of Balindong, with
respect to which, it resolved “to examine the Provincial Treasurer’s copy
and the Comelec copy of said return.”

In a separate resolution of the same date, the Commission:  (1) approved in toto
the Committee’s supplemental report; (2) ruled that the returns for Precincts
Nos. 8, 13 and 14 of Tubaran, 8 of Balindong, and 9 and 14 of Balabagan,
have no fatal defects; (3) ordered the opening of the ballot boxes of Precincts
Nos. 7-A and 8 of Bacolod-Grande, 11 of Balindong and 6 and 9-A of Binidayan,
for examination of the returns contained therein; (4) sustained the action of
the Board in including in its canvass the provincial trea­surer’s copy of the
return for Precinct No. 11-B of Balindong; (5) held,
upon examination of the copies of the Commission and the provincial treasurer
of the return for Precinct No. 10 of Balindong, that Dimaporo had obtained therein 246 votes, without prejudice
to a judicial re­count if the result would be affected; (6) found, upon
examination of the provincial treasurer’s copy of the return for Precinct 11 of
Balin­dong, that there is a misalignment of the
number of votes therein recorded, and, accordingly, ordered the use of the copy
of the Commission, pursuant to which Lucman had
obtained 15 votes, Dimaporo 225, and independent
candidate Liningding Pangandaman
0; (7) ordered the use, with respect to Precinct No. 10 of Bayang,
of the Commission’s copy of its return, and, as regards Precinct No. 10-A
thereof, of the provincial treasurer’s copy; (8) directed the use of the
Commission’s copy of the returns for Precincts Nos. 8 and 9-C of Malabang; (9) ordered that the ballot box copies of the
returns for Precincts Nos. 7-A and 8 of Bacolod-Grande
be used in the canvass; and (10) as to Precincts Nos. 6 and 9-A of Binidayan, it decided, as to the former, to “restore
original writ­ing not superimposition, to wit: 
Lucman – 42 votes; Dimaporo
– 112 votes; Pangandaman – 4 votes, without prejudice
to judicial recount if result will be affected”, and, as to the latter,
the use of the provincial treasurer’s copy of the return.

With respect to other objections made by the parties, the
Commission decided to defer the resolution thereof until the com­pletion of the
evidence, for which purpose it required them to make, not later than January
20, 1970, their formal offer of documentary evidence or exhibits, as well as to
give them until January 22, 1970 to file, simultaneously, their respective
memoranda, and declared that the case would be deemed submitted for decision
upon the fling of said memoranda.

On January 26, 1970,
the Commission issued its appealed resolution, the dispositive
part of which reads as follows:

“In view of the foregoing, the Commission RESOLVES:

“(1)  To hold that, except with respect to Precincts
Nos. 3, 6, 7, 12 and 12-A, there was voting in Tubaran
and, therefore, the action of the board in including in the canvass the returns
from Precincts Nos. 1, 2, 4, 5, 8, 9, 10, 11, 13, 14 and 16 is hereby
sustained;

“(2)  To reject the returns from Precincts Nos. 3,
6, 7, 12 and 12-A Tubaran, it appearing that the
ballot boxes for said precincts are empty and, therefore, the returns prepared
for said pre­cincts are fictitious or false and to direct the Board of
Canvassers to exclude from the canvass the returns from said precincts;

“(3) To hold that petitioner has not sub­stantiated
his claim that there was no voting in twenty-eight (28) precincts of Balabagan; that the LP inspectors of said precincts were
excluded in the canvass and/or forced to sign the returns at gunpoint; and/or
that said returns have been prepared and signed by persons other than the
members of the Board of Inspectors and to sustain the actions of the Board with
respect to said re­turns, except with respect to Precinct No. 61 where
the Board is directed to ascertain the exist­ence of a serviceable copy of the
return, if need be to order the opening of the ballot box to retrieve the
ballot box copy, unless the parties jointly manifest to waive the canvass of
this precinct since the outcome of the election is not affected by the result
from this precinct or there was really a failure of election in this precinct;

“(4) To hold that the Commission has no jurisdiction
to nullify the results of the election of Precinct No. 5-A, Madalum,
where petitioner alleged that election took place on November 12, 1969 instead
of November 11, 1969, such question being one within the jurisdiction of the
House of Electoral Tribunal;

“(5)  To hold that the evidence presented by
petitioner to substantiate his claim that the returns for Precinct No. 18, Lumba-Bayabao, Precincts Nos. 8, 9, 9-A, 10 and 11, Binidayan and Precincts Nos. 6, 7, 8 and 9, Balindong have been prepared at gunpoint or that the LP
inspectors therein have been illegally substituted or forced to sign the return
are inconclusive to overcome the presumption of regularity in the pre­paration
of said returns or in favor of their valid­ity, especially where there is also
evidence sub­mitted by respondent to fortify said presumption and to hold
further that the alleged irregularities committed in these precincts are
corrupt election practices and anomalies more appropriately sub­ject of
election protests;

“(6)  To order the Provincial Board of Canvassers to
reconvene in Manila to revise and complete the canvass for the position of
Member, House of Representatives of the lone district of Lanao
del Sur in accordance with the herein reso­lution and
the resolutions of the Commission pre­viously promulgated by this Commission,
parti­cularly those promulgated on December 12, 1969, December 29, 1969,
January 15, 1970 and January 16, 1970 (Item D, Agenda) copies of which reso­lutions
are attached and made integral parts hereof;

“(7)  To instruct the board that after it completes
the canvass to desist from proclaiming the winner until Friday, January 30, 1970 at 5;00 P.M. unless
restrained by the Supreme Court.”1

Briefly stated, Petitioner herein seeks the exclusion from the
canvass of the returns for the following:

1.    14 precincts of Tubaran

2.    28 precincts (all except Precinct No. 6) of Balabagan

3.    4 precincts (Precincts Nos. 6, 7, 8 and 11-B)
of Balindong

4.    5 precincts (Precincts Nos. 8, 9, 9-A, 10 and
11) of Binidayan

5.    1 precinct (Precinct No. 18) of Lumba-Bayabao

6.    1 precinct (Precinct No. 5-A) of Madalum.

By reason of the grounds upon which they are contested, said returns
may be divided into four (4) groups, namely: 
(1) those of Tubaran, which are objected to
upon the theory that no elections had been held in said municipality; (2) those
of Balabagan, which are assailed as having been made
without counting the ballots or votes cast; (3) those of the four (4) other
municipalities, in addition to the
returns for three (3) precincts (Nos. 8, 13 and 14) of Tubaran
and two (2) (Precincts Nos. 9 and 14) of Balabagan,
which are impugned upon several grounds; and (4) those of three (3) precincts
of Balabagan, which had been excluded, in the canvass
for Senators, as being obviously manufactured.

With respect to Tubaran, Petitioner
maintains that no elec­tions were held therein because the precinct books of
voters of said municipality had been stolen on the eve of election day.  This contention was sustained by the
Commission as regards only five (5) precincts (Precincts Nos. 3, 6, 7, 12 and
12-A) of Tubaran, no ballots having been found inside
its ballot boxes when the same were opened before the Commission, on January 13, 1970.  Respon­dent alleges that this finding is
inaccurate, insofar as Precincts Nos. 3, 6 and 7 are concerned, because the
Commission had merely found in its ballot boxes no envelope with an inscription
to the ef­fect that it is “for counted ballots, ” and denied his
request that the envelopes contained in said boxes be opened, for the reason
that there might be used ballots therein, notwithstanding the absence of the
aforementioned inscription.  We do not propose,
however, to pass upon the question thus raised by Respondent, the same being
one of fact which is not proper in the proceedings before Us, whether the same
be regarded s an original action for certiorari or as an appeal by certiorari.  Indeed, in special civil actions for
certiorari, the main issue is one of jurisdiction – lack of jurisdiction or
grave abuse of discretion amounting to excess of jurisdiction1 whereas petitions for review on certiorari are
limited to the con­sideration of questions of law.1

Petitioner asserts that the Commission has erred in sanc­tioning
the inclusion, in the canvass, of the returns for-Precincts Nos. 1, 2, 4, 5, 8,
9, 10,13, 14 and 16 of Tubaran, despite his claim
that no elections had been held therein, which the Commis­sion found he had
failed to substantiate.

The question whether or not there had been elections or not in
said precincts is manifestly one of fact and, in view of the last paragraph of
section 9 of Commonwealth Act No. 657, which is identical to that of Section 5
of the present Revised Election Code,2 reading:

“ xxx                                       xxx                                          xxx
“

“Any decision, order or ruling of the Commission on Elections
may be reviewed by the Supreme Court by writ of certiorari in accordance with
the Rules of Court or with such rules as may be promulgated by the Supreme
Court.”

the majority opinion, in Sotto v.
Commission on Elections3 stated
that “this Court can not x x x review the rulings or findings of fact of the Commission
on Elections.”

It Is true that such pronouncement was not concurred in by
several members of this court who were inclined to believe that its
constitutional power of review of decisions, orders or rulings of the
Commission is absolute.  We do not share,
however, such belief for:  (1) the
Constitution uses the term “review,” not “appeal,” and
these terms have different connotations in our jurisdiction; (2) Congress is
deemed to retain its general power to define the manner in which the Supreme
Court shall exercise its power of re­view, in the absence of clear and specific
provision to the con­trary, and no such provision exists; (3) pursuant to our
Adminis­trative Law, the findings of fact of administrative organs create by
ordinary legislation will not be disturbed by courts of justice, except when
there is absolutely no evidence or no substantial evidence in support of such
findings,1 and there is no reason to
believe that the framers of our Constitution intended to place the Commission
on Elections – created and explicitly made “independent” by the
Constitution itself – on a lower level that said statutory administrative
organs; and (4) the aforementioned provi­sion of the Election Law is presumed
to be valid until otherwise declared by competent court.

At any rate, in addition to the admitted fact that all pre­cinct
books of voters for Tubaran had disappeared on the
eve of election, the evidence for the Petitioner consisted of affidavits of the
LP election inspectors in Tubaran, the Chairmen and
Poll Clerks of some precincts therein, the LP Chairman and local leader of the
Petitioner, and a few registered voters, aside from a message of the Special
Action Team of the Commission in Lanao del Sur suggesting that the Commission recommend to the
President the suspension of the elections in Tubaran,
owing to the disappearance of said books of voters.

After going over the record, We are satisfied that the find­ing
of the Commission to the effect that elections had been held in Precincts Nos.
1, 2, 4, 5, 8, 9, 10, 11, 13, 14 and 16 of Tubaran,
is supported by substantial evidence.  In
fact:

(1)  Ballots were found inside the ballot boxes of
said precincts;

(2)  The Municipal Treasurer of Tubaran
testified that, owing to the disappearance of the books of voters and to the
fact that the Election Registrar was unavailable on election day, he (the
municipal treasurer) had caused the precinct lists of voters and copies of CE
Form No. 39 to be furnished each precinct by forcing open the cabinets, in the
office of the Election Registrar, in which said documents were kept.  Petitioner assails the credibility of said
testimony, but such matter is beyond our power of review in the present case,
apart from the fact that the Commission, before which the testimony had been
given, was in a better position that We are to pass upon it.

(3)  The contested finding of the Commission is,
also, borne out by the aforementioned message of its Special Action Team, which
reported that the “MUNICIPAL TREASURER X X X FORCIBLY OPENED CABINETS OFFICE ELEC REGISTRAR WHERE
PRECINCT LIST VOTERS KEPT AND DISTRIBUTED SAME TO BOARDS ELEC INSPECTORS X X X.”1

(4)  Further corroboration is supplied by the
returns for the 11 precincts aforementioned.

(5)  Then, too, Respondent submitted affidavits of
the chair­men, poll clerks and NP inspectors of said precincts, contradicting
the affidavits submitted by Petitioner. 
The latter insists that said affidavits filed by Respondent should not
be entertained, he (Peti­tioner) having objected thereto as hearsay evidence,
for he had no opportunity to cross-examine the affiants, despite his request
that they be summoned therefor, which was
denied.  Even, however, without said
affidavits for Respondent, the disputed finding of the Commission would, still
be supported by substantial evidence, and, hence, should not be disturbed.

With respect to twenty-eight (28) precincts of Balabagan, Petitioner alleges that the election returns therefor were “prepared at the Municipal Hall of said
municipality, where the ballot boxes were forcibly brought, without opening
said ballot boxes, and without counting the votes cast, with the LP inspectors
excluded in the pre­paration of said election returns at gunpoint, or, in some,
were coerced to sign the election returns at gunpoint.”2

To substantiate this allegation, Petitioner introduced the affidavits
of a number of LP inspectors and CNEA watchers, two (2) members of the PC and
some 12 leaders in Balabagan.  Respondent Dimaporo
countered, however, with affidavits of practically all of the chairmen, poll
clerks and NP inspectors, as well as of some LP inspectors. Moreover, the
testimony of the Election Registrar of Balabagan, who
was summoned by the Commission, bore out the theory of Respondent herein.  Passing upon Petitioner’s objections to the
aforementioned returns, the Commission had the following to say:

“In view of this conflict in the sworn statements of the
witnesses of petitioner and respondent, the Commission decided to summon Abdul Marahom­salic, the Comelec
Registrar of Balabagan.  He testified before the Commission denying
the imputation of petitioner and his witnesses that he, together with the
mayor, had ordered the Board of Inspectors to bring the ballot boxes to the
Municipal Building where the Board of Inspectors were ordered to pre­pare the
returns without opening the ballot boxes to read or canvass the votes.  He was subjected to lengthy examination by the Members of the
Commis­sion and grueling cross
examination by counsel for the petitioner. 
After hearing the testimony of said registrar and observing closely his demeanor and
manner of testifying at the
witness stand mission is
inclined to believe his testimony and that there is no truth to the charge that he and the mayor had ordered the
preparation of the returns without the canvassing of the votes.

“In any event, the very nature of canvass proceedings which
the Supreme Court in its recent decision in the ILARDE vs. TAMANO case has
again emphasized to be merely summary would not require the Commission to go
beyond the need of determin­ing a prima facie case.  In view of this fact, the Commission believes
that the presumption of regu­larity, which in this case is supported by the
sworn statements of the chairmen and poll clerks in this disputed precincts of Balabagan and of the election registrar not to mention
those of the NP inspectors and in some precincts LP inspectors, has not been
overcome by the sworn statements of the witnesses of petitioner x x x “1

Petitioner impugns the foregoing conclusion upon the ground
that:  (1) the affidavits for Respondent
are inadmissible as hearsy evidence, because the
affiants could not be cross-examined, the Commission having refused to summon
them, despite timely motions filed by Petitioner; (2) the testimony of the
election registrar is unworthy of credence; (3) the affidavits for the Petitioner
include those of some members of the PC and CNEA watchers, which are supported
by the report of the Special Action Team of the Commis­sion, and, hence, should
be accorded much weight; (4) the pre­sumption of regularity is inapplicable to
the case at bar; and (5) the returns for Precincts Nos. 3, 4-B and 15 of Balabagan had been excluded by the Commission in its
canvass of the returns for senators, as obviously manufactured.

The first ground relied
upon by Petitioner is untenable, for:

(a)  The records show that the Commission had
indicated its intention to determine the case on the basis of the affidavits
and the documentary evidence introduced by the, parties and that it was with
such understanding that Respondent filed affidavits in his favor and did not
object to those made for Petitioner herein.

(b)  Petitioner’s objection would be plausible, if
the Commis­sion were a court of justice or could determine and settle with
final­ity the issue, of fact raised in connection with the returns for the municipality
of Balabagan.  The Commission has no such authority.  Hence, when, upon denial of Petitioner’s
motions for the issuance of subpoenae to the affiants
for Respondent herein, Petitioner insti­tuted Case No. L-31430 of this Court –
to compel the Commission, by mandamus, to, inter alia
issue the aforementioned subpoenae -We forthwith
dismissed the petition therein and, soon thereafter, denied petitioner’s motion
for reconsideration of our resolution of dismissal of the case.

Indeed, in connection with
the canvass of the returns for the office of member of the House of
Representatives for Lanao del Sur,
the functions of its Provincial Board of Canvassers is purely ministerial in
nature.  In fact, in, his original
petition for exclusion, filed with the Board, petitioner quoted from Dimapiles, v. Comelec1.

“A canvassing board performs a purely minis­terial function –
that of compiling and adding the results as they appear in the returns
transmitted to it.  This is the teaching
in Nacionalista Party v. Commission on
Elections:  the canvassers are to be
satisfied of the genuineness of the returns – namely, that the papers presented
to them are not forged and spurious, that they are returns, and that they are
signed by the proper officers. When so satisfied, x x
x they may not reject any returns because of
informalities in them or because of ille­gal and fraudulent practices in the
elections.'”

Equally ministerial,
therefore, is the function of the Com­mission, in the exercise of its
supervisory power over said Board, pursuant to our Constitution and laws.2 There being
no law vesting in either the power to decide and settle the question whether
the election returns of given precincts have been prepared without counting the
votes cast therein, their views in connection therewith, whatever they may be,
do not foreclose the subsequent determination of that question in the
corresponding election pro­test, if any. So long as the election returns have
been accomplished in due form, the Board, and, on appeal therefrom,
the Com­mission, must include said returns in the canvass.

(c)  Lagumbay v. Comelec1 presented a peculiar situation.  Two (2) sets of returns were involved
therein.  In the first set, “in each
precinct the number of registered voters equalled the
number of ballots and the number of votes reportedly cast and tallied for,
each and every, candidate of the Liberal Party, the party in power;
whereas, all the candidates of the Nacionalista Party
got exactly zero; and in the second set x x
x all the reported votes were for candidates of the
Liberal Party, all of whom were credited with exactly the same number of
votes in each precinct; x x x
whereas, all the candidates of the Nacionalista Party
were given exactly zero in all said precincts. ” As a consequence,
this Court held that said returns were “obviously
manufactured” “contrary to all statistical probabilities,” “utterly
improbable and clearly incredible.” It should be noted that this
was not strictly an issue of fact. 
Indeed, the main elements essential to its determination appeared on
the face of the returns themselves. 
In other words, there was no dispute as regards such
elements.  The dispute boiled down to the
proper conclusion to be drawn therefrom, and, hence,
it partook of the nature of a question of law.2 What is
more, in the view of this Court,
that conclusion was clear, obvious, manifest, and indubitable.

Such is not the situation obtaining in the case at bar.  The irregularity pointed out by the
Petitioner is denied by Respondent, thereby raising a purely factual
question.  Instead of settling the same,
the affidavits submitted by both parties merely stressed the contentious nature
of the issue.  Moreover, the same could
not have been wiped out or even minimized by the presence and cross-examination
of the affiants for Respondent, had they appeared be­fore the Commission.  In other words, unlike the condition of the
returns involved in the Lagumbay case – which this
Court consi­dered incontestable that existing as regards the returns for
Balabagan is clearly a very controversial one,
which the Commission has no power to decide with finality.

(d)   The
Commission could not, moreover, summon the affiants for Respondent, without
granting him the same right to examine the the
affiants for Petitioner.  This would have
entailed a full-dress elucidation of
the aforementioned issue of fact, which, after all, the Commission cannot
settle authoritatively. Worse still, it would create a situation fraught with possibilities,
inimical to the spirit of the laws establishing boards of canvassers.

It is well settled that the same are meant, not only to charge purely ministerial duties, based upon returns submitted thereto
in due form, but, also, to perform this function summarily, so that winning candidates could assume their
office on the date set for the commencement of their term.  The main role of the Commission in connection
therewith is to see to it that such objective be carried out.  The theory advanced by petitioner herein
would, however, induce the candidates who are likely to lose, on the basis of
said returns, to raise questions of fact requiring the introduction of
testimonial evidence thereon.  If
sustained, its effect would be to delay, far beyond the time envisaged by law,
the proclamation of the winning candidates and their assumption of office,
thereby de­priving the people, in the meanwhile, of the representation they are
entitled to.  Again, there would be an
unnecessary duplication of the proceedings peculiar to election protests, with
the consequent possibility of having different results and the serious dangers
con­comitant therewith.

(e)  The contested resolution of the Commission was
issued on appeal from the action of the Board in denying the petitions
for exclusion filed by petitioner herein. 
Hence, petitioner could not legally raise before the Commission, in the
exercise of its appellate jurisdiction, any question not originally set up
before said Board.  The propriety of
considering affidavits when its makers have not been made available for cross-examination
was never put in issue before said Board. 
Accordingly, Petitioner had no right to do so on appeal taken to the
Commission.1

The matter of credibility of the testimony given by the election
registrar of Balabagan cannot, for the reasons
already adverted to, be entertained in the present proceedings.

As regards the CNEA watchers, the Commission had the following to
say:

” x x x
the Commission well remembers that in organizing the CNEA for Lanao del Sur, the Chairman and
two Members of the Commission who went to Marawi City
last September 1969, were faced with the difficulty of looking for impartial
and non-partisan CNEA representatives for as they were then informed in Lanao del Sur one is either a
rabid partisan or follower of the DIMAPORO’s or of
the LUCMAN’s and ALONTO’s.  Consequently, it is possible that all
witnesses whose sworn statements have been submitted to the Commission are
partisans of the one or the other. xxx .”1

We find nothing in the record to justify our disturbing the
foregoing view.  On the contrary, the
same is bolstered up by the fact that most of the affidavits belonging to each
set follow, mutatis mutandis, an identical pattern, as to both
the substance of its contents and the language thereof.

Then again the report of the Special Action Team of. the
Commission referred to two (2) precincts only of Balabagan
– Pre­cincts 9 and 9-A and merely expressed an opinion, based; not upon
personal knowledge, but upon the affidavits of an enlisted man and a
lieutenant, both of the PC, made 9 and 15 days, respectively, after the
elections.  Being limited to two (2)
precincts of Balabagan, said report can not affect
the other precincts thereof.  Besides, it
can not prevail, over the contested resolution of the Commission or prove that
the latter is erroneous.  The Commission
had conducted more extensive investigations, as well as received and considered
much more evidence than said Team.  

 In support of the theory that
Respondent may not avail of the presumption of regularity, Petitioner quotes
from Corpus Juris Secundum:        

“The presumption cannot be indulged to the extent of supplying
the necessary authority for an act, or to sustain official action where the man­datory
requirements of a statute concerning such action are wholly disregarded.1

This argument assumes, however, that the mandatory provi­sions
of the Election Law have not been ‘complied with in connection with the returns
for Balabagan; but, this is merely Petitioner’s con­tention,
which, at best, is debatable.  As the
party asserting that irregularities had been committed in the preparation of
said returns, Petitioner had the burden of proving the same and of offsetting
the presumption of regularity established by law.  As heretofore adverted to, he, however,
failed in both.

Let us now consider the
returns for precincts Nos. 3, 4-B and 15 of Balabagan,
which had been excluded by the Commission from its canvass of the returns for
senators, upon the ground that they were obviously manufactured.  This conclusion was based upon the fact that
100% of the votes cast in said precincts were credited to every one of the
candidates for senator belonging to only one political
party.  It appears, however, that the
candidates for the House of Representatives were credited in said returns
“with a few votes.” Obviously, the entries with respect to these
candidates for the House of Representatives do not come within the purview of
the rule laid down in the Lagumbay case and are not
obviously ma­nufactured. In fact; We had previously ruled that:

“We agree with the respondents that the second and third
grounds (supra) advanced by petition­ers to force rejection by Comelec of the contested returns are untenable.  For while the Commission in its role as
senatorial canvasser had the power to re­ject returns before it that in its
opinion was illegal or not authentic, neither law nor precedent authorize it to
impose the same criterion in advance upon the provincial boards of
canvassers.  The latter are certainly
entitled to use their own judgment in deter­mining whether the irregularities
appearing on returns before them warrant their rejection.  It must not be forgotten that the copies of
the returns upon which the provincial canvassers act are different from those in
the possession of the Comelec, and the irregular­ities
noted in the latter may not necessarily exist in the former.  Should there be
any discrepancy bet­ween the official copies, the petitioners can recourse to a
judicial recount under section 163 of the Election Code.  But certainly, an a priori
rejection on the basis of previous Comelec action is
not justifiable.2

Petitioner maintains, also, that there were other irregular­ities
in the preparation of the returns for the following precincts, or that there
are defects therein, warranting the exclusion thereof from the canvass:

(a)  Precincts Nos. 8, 13 and 14 of Tubaran, involving alto­gether 193 votes for Respondent and
11 votes for Petitioner, or a plurality of 182 votes in favor of Respondent;

(b)  Precincts 9 and 14 of Balabagan,
involving a total of 330 votes for Respondent and zero (0) vote for Petitioner,
or a plu­rality of 330 votes in favor of Respondent;

(c)  Precincts Nos. 6, 7, 8 and 11-B of Balindong, involving a total plurality of 762 votes in
favor of Respondent1;

(d)  Precincts Nos. 8, 9, 9-A, 10 and 11 of Binidayan, involving an aggregate of 1,562 votes for
Respondent and 57 votes for Petitioner, or a plurality of 1,505 votes in favor
of Respondent.2

(e)  Precinct No. 18 of Lumba-Bayabao,
involving 54 votes for Respondent and 50 votes for Petitioner, or a plurality
of 4 votes in favor of Respondent; and

(f)   Precinct No. 5-A of Madalum,
involving 102 votes for Respondent and 1 vote for Petitioner, or a plurality of
101 votes in favor of Respondent.3

It should be noted, however, that the tentative result of the
canvass conducted by the Board gave Respondent a total of 46,326 votes,
Petitioner 41,157 votes and independent candidate Pangan­daman
7,875 votes, or a plurality of 5,169 votes in favor of Respon­dent, over his
closest opponent, Petitioner herein. 
Upon the other hand, the aggregate plurality of Respondent in the
precincts above mentioned is 2,884 votes, which, added to his plurality of 371
votes in Precincts Nos. 3, 6, 7, 12 and 12-A of Tubaran,4 gives a grand total of 3,255 votes.  Deducting the same from the plurality of
5,169 tentatively found by the Board in favor of Respondent, he would still
have a plurality of 1,914 votes to his credit. 
It is, accordingly, unnecessary for Us to pass upon Petitioner’s object­ions
to the returns for the aforementioned sixteen (16) precincts.

WHEREFORE, the petition herein should be as it is hereby
dismissed and the writ prayed for denied. The temporary restraining order
issued by this Court, on February 2,
1970, is, moreover, set aside and dissolved.  With costs against the Peti­tioner.

IT IS SO ORDERED.

Reyes, J., concurs with J.
Dizon.

 Dizon,
J., concurs in a separate opinion.

Makalintal and Zaldivar, JJ., in the result.

Fernando and Villamor, JJ., concur.

Teehankee and Barredo, JJ., took no part.

Castro, J., on leave.

---

1 G.R. No. L-25444, January 31, 1966.

1 Page 3 of Annex T; Page 199 of Rollo.

2 Required for making substitution
of election inspectors.

3 In which the oath of new
appointees as election in­spectors are made.

4 Precincts Nos. 8, 13, and 14 of Tubaran; Precincts Nos. 8, 10 and 11 of Balindong;
Precincts Nos. 9 and 14 of Balabagan; and Precincts
Nos. 7-A and 8 of Bacolod-Grande.

1 “The Committee was unable
to examine a copy of the return for Precinct 6, Balabagan
for what was shown to the Committee was merely the form for Certificate of
Votes received by each candidate.  The
parties reserved their rights to present the matter to the Commission but have
not done so.  See Report, page 13.”

1 Pages 205-207, Rollo.

1 Hamoy v.
Sec. of Agriculture, G.R. No. L-13456, Jan. 30, 1960; Ma-ao
Sugar Central v. Barrios, 79 Phil. 666; Ang Ching Gi v. De Leon, 79
Phil. 580; Ong Sit v. Piccio,
78 Phil. 785; Tarnate v. Daza,
76 Phil. 842; Alafriz v. Nable,
72 Phil. 278; Abad Santos v. Province of Tarlac, 67 Phil. 480; Tavera-Luna,
Inc. v. Nable, 67 Phil. 340; Claudio v.
Zandueta, 64 Phil. 812, 817; Chua Ke
v.  Abeto,
63 Phil. 539; Westminster Bank v. Torres, 57 Phil. 422; Sabado v.
Gonzales, 53 Phil. 770.

1 Section 5, R.A. No. 180; Sec. 1,
Rule 43, Rules of Court; and Sec. 2, Rule 45, Rules of Court. Lo Ching v. Court of Appeals, 81 Phil. 601; Meneses v. Commonwealth of the Philippines, 69 Phil.
647; Mamuyac v. Abena;
67 Phil. 289; Mateo v. Collector of Customs, 63 Phil. 470; Guico v, Mayuga, 63 Phil.
328.

2 Republic Act No. 180.

3 76 Phil, 516, 521.

1 Municipality of Gattaran v. Elizaga, 91
Phil. 440; Halili v. Belane,
88 Phil. 450, 452; Jason v. Santos, 79 Phil. 381; Jaro
Express Co. v. Lopez, 66 Phil. 158; Manila Yellow Taxicab v. Danon, 58 Phil. 75; San Miguel Brewery v. Lapid, 53 Phil. 542.

1 Exh. A, p. 436, Record.

2 Par. 4, of the Petition.

1 Pages 202-203, Rollo. 
Underscoring ours.

1 G.R. No. L-28396, December 29, 1967.

2 Sec. 2, Article X of the
Constitution and section 2 of R.A. No. 180.

1 Supra.

2 Joaquin v. Navarro,
93 Phil. 257, 269-270; Cunanan v. Lazatin, 74 Phil. 719, 724; Luna v. Linatoc, 74 Phil. 15.

1 Subido
v. Lacson, 103 Phil. 417; Suarez v. Abad Santos, 96 Phil. 302, 307; Talento
v. Makiki, 93 Phil. 855; Ramento
v. Cosuangco, 93 Phil. 56; Pacheco v. Arro, 85 Phil. 505; Villareal v.
People, 84 Phil. 264; Coingco v. Flores, 82
Phil. 284; Tan Si Kiok v.
Tiacho, 79 Phil. 696; Saludes
v. Pajarillo, 78 Phil. 754; Re Gregorio, 77
Phil. 906; De Leon Vda. De Lontok
v. Padua, 75 Phil. 548; City
of Manila v. Vda. De Roxas, 60 Phil. 215;
Martinez v. Tolentino, 43 Phil. 492; Vergara v. Laciapag, 28
Phil. 439; Tan Machan v. Trinidad, 3 Phil.
684.

1 Page 203, Rollo.

1 31 C.J.S. 807.

2 Alonto
v. Comelec, G.R. No. L-28490, Feb. 28, 1968.

1 According to petitiioner’s Manifestation of January 24, 1970, in Vol. II, Case No. 696, Comelec.

2 According to the petition
in G.R. No. L-31430.

3 See Manifestation filed by
petitioner with Comelec in January 24, 1970.

4 See Appendix K to Petition
for Review of December 5, 1969 filed with the Comelec. There are no returns for Precincts Nos. 12 and
12-A.

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