BARNEY FRENCH, PETITIONER, VS. COMMISSION ON ELECTIONS AND TOMAS BAYAN, RESPONDENTS.

In the election of November
14,1967, petitioner Barney French was the official Nacionalista Party candidate for mayor of Polomolok, Southern Cotabato.  His opponent was the reelectionist
mayor, respondent Tomas Bayan.

The members of the Municipal Board of Canvassers, although
previously notified to meet on November
27, 1967 at the PC Barracks at General Santos, Southern Cotabato, as directed by the Commission on
Elections (COMELEC), failed to appear, with the exception of the Chairman,
Vice-Mayor Conrado Delfin.  In view of their absence, they were suspended
by the COMELEC representative, Atty. Mauro T. Paredes,
who appointed five substitutes for the absent members; and the replacements
having qualified, the Board of Canvas proceeded to receive the returns from the
Municipal Treasurer, and to canvas the same. 
After completion, the Board proclaimed as elected by a plurality of
votes Barney French as Mayor, Mrs. Lilia Matuliano as
Vice-Mayor, and eight councilors.  The
corresponding certificate was signed on the same day.

On November 30, 1967, however, the original board of canvassers,
composed of the Vice-Mayor, three councilors and four substitutes for re-­electionist members, made a second canvass without the
intervention of the COMELEC representatives and proclaimed Tomas Bayan and Fortunato Busgaves as Mayor and Vice-Mayor elect, with eight
councilors (seven of them being those proclaimed in the preceding canvass).

Bayan then petitioned the COMELEC, on December 5, 1967, to annul and set
aside the first canvass of November
27, 1967, as illegal and irregular for lack of notice, and to
declare the canvass of November 30,
1967 as the proper one.  This
petition was opposed by Barney french, petitioner in
the case before us.

On December 27, the COMELEC resolved:  (1) to annul and set aside both
proclamations; (2) to direct the official Municipal Board of Canvassers of Polomolok to reconvene and recanvass
the election returns of said municipality and thereafter proclaim the winning
candidates,

“using the election returns copy for
the Municipal Treasurer, with the election returns copy for the Commission
on-Elections as reference, and in case of discrepancy the parties may resort to
a judicial recount as a remedy;”

and (3) to designate Attys. Guillermo
Lucas and Gerardo Bautista as supervisors of the aforestated
recanvass.

The ordered recanvass was begun at the PC Barracks of General Santos on
2 January 1967.  The minutes show that when the box of returns
was produced, Atty. Lucas, COMELEC supervisor, observed that all the three keys
to the ballot box containing the returns were in possession of the Municipal
Treasurer Matullano, When, by law, one should be in
the possession of the Secretary and another in that of the Chairman of the
Board of Canvassers.  The treasurer
explained that when he assumed office, the former acting treasurer, Amado de Vera, turns all the keys over to him on December 1, 1967.  Then the Chairman observed that the pin (at
the back of the ballot box cover) was loose; and upon opening the box, one of
the self-locking metal seals (No. E-97) was missing, and was found in the inner
compartment of valid ballots.  It was
thereafter found that the Treasurer’s copies of the returns for Precincts Nos.
9, 10 and 11 differed from the COMELEC copies as to the votes obtained by
respondent Bayan, as follows:

Upon petition of counsel for French, the canvass was suspended to
enable both parties “to resort to legal remedies”.  Respondent Bayan
suggested all be boxes and election returns be deposited in the possession of
the COMELEC, Manila The board granted both requests, but made of record that
“Counting of Election Return which was found not tampered, from Precinct
No. 21 down to Precinct No. were completed, and partly of Precinct No. 9 was
finished” (Minutes, Petition, Annex N).

The two COMELEC supervisors reported the anomalies to the
Commission, recommending that the recanvassing be
done in Manila, and that the COMELEC’s copy of the returns be used “because of the
glaring discrepancies between the Treasurer’s copy and the Comelec
copy” (Petition, Annex H).

On January 11, 1968,
in view of the written objections of respondent Bayan
the COMELEC resolved that the canvassing be resumed and continued at the Pc
Barracks of General Santos, Cotabato, “provided
that should there be discre­pancies in the election returns, the aggrieved
party may go to the proper court for the appropriate judicial
relief”.  Upon motion for reconsideration
of peti­tioner French, the COMELEC, on January 23, reaffirmed its resolution of
Jan­uary 11, with the modification that, after canvass, “the proclamation
of any winning candidate be withheld until further orders of the Commission.”

Barney French then resorted to this Court for a writ of
certiorari with preliminary injunction to set aside the resolutions of the
COMELEC dated January 11 and 23, 1968, and that the Municipal Board of
Canvassers of Polomolok be directed to recanvass the election returns on the basis of the COMELEC
copies instead of those of the Municipal Treasurer.  It is his position that the facts on record
show that the copies of the treasurer (at least those of Precincts Nos. 9, 10
and 11) had been tampered with after the first canvass of November 27, 1967.

We gave the petition due course, and issued a restraining, order
to stop implementation of the COMELEC resolutions complained of.

Respondents filed answers in due time.  They contend that the petition premature in
that (a) there is no showing that the discrepancies noted would affect the
result of the election and (b) that the Municipal Board of Canvas has not been
given an opportunity to pass on the authenticity of the returns.  They further claim that there is no
sufficient evidence of alteration and tampering, and that the proper remedy is
a judicial recount.

Plainly, the capital question in this case is whether the
Municipal Treasurer’s copies of the returns for at least Precincts Nos. 9, 10
and 11 of Polomolok, South Cotabato, are authentic or falsified.  The record before us convincing that we are
not here dealing with innocent or bona fide discrepancies, but
with a case of tampering made after the first canvass of November 27, 1967 with
intent to falsify the true results.  This
is conclusively shown by the undisputed fact that the tabulation of the results
of the first canvass (Petition, Annex M) shows that when the copies of the
returns, originally submitted by the Municipal Treasurer, were first examined
on November 27, 1967, the number of votes for candidate Bayan
appearing in these returns was the same one shown in the copies of the returns
in the hands of the Commissions Elections for the same precincts; but when the
returns were examined again in the presence of the COMELEC supervisors on January
2, 1968, the number of votes received by the candidate Bayan,
according to the same treasurer’s returns, no longer coincided with that shown
in the COMELEC copies but were increase Thus –

The only rational conclusion derivable from these facts is that
the Municipal  Treasurer’s copies of the
returns for Precincts 9, 10 and 11 of Polomolok had
been altered or tampered with after the first canvass of November 27, 1967 by increasing the
number of votes received by respondent Tomas Bayan.  And this conclusion is reinforced by the
undisputed circumstances that at the start  of recanvass of
January 2, 1968 it was found that (a) all three keys to the ballot box where
the returns were kept (and which, by law, should be one in the possession of
the Municipal Treasurer, another in that of the Secretary, and the third in
that of the Chairman of the Board of Canvassers) had all been in the possession
of former acting treasurer Amado de Vera on December
1, 1967 and all three had been turned over by him on that day to Municipal
Treasure Leoncio Matullano;
(b) the three padlocks were properly locked but one self-locking metal seal was
missing; and (c) the pin at the back used or intended for the cover of the
ballot box was loose (Minutes of the recanvass of
January 2, 1968, Annex G, page 2; Report of the COMELEC Supervisors, Annex H).

The foregoing facts were brought to the attention of the
respondent COMELEC by its own supervisors, Attys. Lucas and Bautista (see Memo
Report, Petition, Annex H),and by petitioner Barney French in his petition of
January 1968 (Annex J, Petition) and in his motion for reconsideration of
January 13 (Annex J, Do.).  Yet the
Commission, without challenging the anomalies found by its supervisors, and in
plain dereliction of duty, chose to ignore the issue of tampering, and insisted
that the recanvass be resumed “provided that
should there be discrepancies in the election returns, the aggrieved party may
go the proper court for appropriate judicial relief”.  This ruling of the res­pondent Commission is
a plain abuse of discretion amounting to excess of jurisdiction.  It ignored and pissed sub silentio the conclusive evidence that the
Treasurer’s copies of the returns for Precinct 9, 10 and 11 were palpably
tampered with for the purpose of increasing the votes to be credit to
respondent candidate Tomas Bayan; and its resolutions
flies in the teeth of our rulings in Espino vs. Zaldivar, L-22325, Dec. 11, 1967, and Ong
vs. Commission on Elections, L-28415, January 29, 1968, that a resort to
judicial recount may not be invoked where, as in the present case, the returns
have been tampered with after they have left the hands of the election
inspectors because a falsified return or spurious return amounts to no return
at all.

In the case of Ong vs. Commission on
Elections, supra, this Court ex­pressly stated (Phil. Law Dec., 1968 A,
pages 256 & 257):

“Where before or during canvassing or before proclamation
representations are made that returns are falsified, it becomes the primary
duty first of the board of canvassers, and then of the Comelec,
to ascertain this fact.

If finally the Comelec summarily finds
that there was fal­sification of the copies to be used for canvassing purposes,
then canvassing must be made upon the basis of authentic copies.  Because a falsified return or spurious return
amounts to no return at all.

If, on the other hand, the discrepancy in the returns was the
result of honest mistakes of the board of inspectors, two courses of action are
open in the court of first instance:  (1)
a petition for correction of returns with the consent of all the members of the
board of inspectors under Section 154 of the Revised Election Code;11
and (2) a petition by the said board or any candidate affected for summary
judicial recount under Sections 163 and 168 of the same code.”

The legal basis for the rule is given in Espino
vs. Zaldivar, supra.  Thereafter quoting Section 163 of the Revised
Election Code, we ruled that (21 Supreme Court Annot.
1212) –

“Implicit in the statute just quoted is that differences in
the number of votes given a candidate should result from contradiction
in the different returns, as prepared and signed by the inspectors.  We do not discern in the law a purpose to
throw the burden on courts where it is patent — as is the case here — that
tampering of the returns occurred after they have left the hands of the
election inspectors, just to pave the way for the proclamation of a candidate
in whose favor falsifica­tion was resorted to.”

In view of the law and the rulings quoted, it is plain that the
contest ruling of the COMELEC can not stand, and must be set aside.

The respondents contend that the determination of the existence
of tampering primarily devolves upon the Municipal Board of Canvassers.  The action of the Board in this case, in
suspending the canvass after the discrepancies in the three precincts were
called to its attention, granting the motion of counsel for French to suspend
the canvass in order to seek legal remedies, and making of record the minutes
of January 2, 1968 that –

“Counting of Election Return which was
found to be not tampered from Precinct 21 down to Precinct No. 10 were
completed, and partly of Precinct No. 9 was finished” (Annex H; emphasis
supplied)

amounts to a declaration by the Board
that some of the returns laid before it were tampered, while others were
not.  At all events, the evidence of
tampering of the municipal treasurer’s returns for Precincts Nos. 9, 10 and 11 being
so plain, the municipal board or canvassers could reach no other conclusion,
and to refer the question to it for a more express pronouncement would not only
superfluous but further delay the ultimate proclamation of the result, contrary
to the avowed purpose of the law to delay proclamation as little as possible
without prejudice to the corresponding electoral protest.

Finally, the respondent’ claim that the petition states no cause
of action because it is not averred that the tampered returns would change the
result, the count is without merit.  Such
condition for a judicial recount, where genuine or authentic copies vary among
themselves, does not apply to the present case for the reasons advanced in the Zaldivar and Ong cases (supra.).  Tamper returns being fraudulent attempts to
thwart the popular will must be struck down whenever met.

While the evidence on record is limited to the tampering of only
three precincts, that fact suffices to cast doubt upon the reliability of the
treasurer’s copies of the returns for the precincts not yet examined by the
board of canvassers, and justifies resort to copies of unquestioned authenticity,
like those of the COMELEC, for a definitive count.

WHEREFORE, the writ prayed for is granted; the contested
resolutions of respondent Commission on Elections dated January 11 and January
23, 1968 are hereby revoked and set aside, and the respondent Commission is
ordered to direct a prompt resumption of the canvass of the election return for
municipal officers of Polomolok, Southern Cotabato, on the basis of the copies of the Commission on
Elections.  The restraining order
heretofore issued by this Court is made permanent. Costs against respondent
Tomas Bayan.

SO ORDERED.

Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Sanchez, Ruiz Castro, and Angeles, JJ., concur.

Fernando, J., did not take
part.

11
Section 154, Revised Election Code, reads: 
‘Alterations in the statement. – After the announcement of the
result of the election in the polling place, the board of inspectors shall not make
any alteration or amendment in any of its statements, unless it be so ordered
by a competent court.  Unanimity of the
board of inspectors has long been considered to be a requisition to correction
under this provision.  Estrada vs.
Navarro, L-28340 & L-28374, December
29, 1967, and cases cited therein.”