DIOSCORO V. ASTORGA, PETITIONER, VS. HON. FIDEL FERNANDEZ, AS JUDGE OF THE COURT OF FIRST INSTANCE OF SAMAR AND EDITA LIM, RESPONDENTS.

This is an original action for certiorari and mandamus against
Judge Fidel Fernandez, of the
Court of First Instance of Samar, and Edita Lim.

The latter, as well as petitioner Dioscoro V. Astorga, were
candidates for mayor of the municipality
of Daram,
Samar, during the elections held on November 12, 1963.  Two (2) days later, Lim was proclaimed
elected to said office with a plurality
of forty (40) votes over her clos­est opponent, petitioner Astorga, who, on November 27, 1963, filed the corresponding election
protest, which was docketed as Special Proceedings No. 4997 of said court,
based upon “irregularities and frauds” allegedly committed in
Precinct No. 12 of Daram where – in the language of the motion protest – “the board of inspectors
illegally read and credited in favor of the protestee some eighty (80) ballots
wherein the protestant was voted for as mayor.” Astorga further averred
that, “if the ballot box for Precinct No. 12 is opened and the votes
contained therein recounted and recanvassed x x x the result of the elections
in the whole municipality would be altered and the protestant will have the
plurality of votes in said municipality.”

On December 2, 1963,
respondent Judge, who presided over said court, required Astorga to file a bond
and make a cash deposit, as well
as ordered the municipal treasurer of Daram to produce immediately, before the
court, his cop­ies of the registry lists, the ballot boxes, the election
statements, the voters’ affidavits and the other documents used in the precinct
aforementioned, in the 1963 elections. 
In her answer to the protest, respondent Lim denied the aforementioned
irregularities “for having no knowledge or information as to the
truth” of the allegations thereon, and set up a counter-protest, based
upon irregularities allegedly committed in another precinct of Daram.

When the case was called
for hearing on February 12, 1964, Astorga moved to open the ballot box in
said Precinct No. 12, in order to examine the ballots contained therein and
recount the votes cast in said precinct. 
Lim having objected thereto, respondent Judge ruled that the pertinent
allegations in the protest are “sufficient” and that “the box
referred to should be opened, but x x x only when the court
is convinced that there really exists that irregularity alleged in the protest x x x not before that,” and,
hence, denied, in the meantime, said motion of Astorga.  A reconsideration of this ruling having been
denied, Astorga commenced the present original action for certiorari and
mandamus, to annul the orders denying the motion to open said ballot box and
the motion for reconsi­deration, and compel respondent Judge to forthwith
proceed with the opening of said ballot box, for the examination of its
contents, the recounting of the votes, and other appropriate proceedings.

In support of his
petition herein, Astorga invokes pre­vious decisions of this Court holding that
“the law does not require prima facie showing other
than the allegations in the protest of fraud or irregularities in order to
authorize the opening of the boxes;”^[1] that “when in
the motion protest certain
irregularities committed by the election inspectors in the count of the votes
are alleged, this constitutes suf­ficient ground for the opening of the
ballot boxes and the examination of the questioned ballots;”^[2] that “where the protestant alleges that
certain ballots in certain precincts have been cast for him but had been
counted for his opponent x x x the law affords him a remedy and has placed upon
the court the mandatory duty to ‘forthwith cause all ballots used at
such election to be brought before it and examined’”;^[3] that since “the petitioner has raised
in his protest the ques­tion relative to the legality or illegality of certain
bal­lots in precinct No. x x x as well as the accuracy of the count thereof x x
x he has the right to have the ballots examined” and “it
constitutes a violation of the imperative duties of the judge to deny to
the petitioner the opening of the ballot boxes in question”;^[4] and that

“The provisions of Section 175 of the Elec­tion Code
contemplates two cases in which ‘the court shall
immediately order that the ballot boxes be produced before it and that the bal­lots
be examined and votes recounted’:  First,
‘upon the petition of any interested party’, and second, ‘or motu propio, if
the interests of justice so requires.’ Under the first case, the mere
petition of any interested party, of course, in accordance with
the pleadings, is by itself enough. 
The limitations implicit
in the pronouncements made by the Supreme Court as to the effect that the
allegations of the pro­test must show the need of counting and examin­ing the
ballots have been eliminated by the drafters of the Election Code.  Their evident purpose was to cut short all
technicalities, and controversies on legal niceties standing in the way
of a prompt examination and counting of the ballots and early disposal of
protests, and to avoid the recurring petitions filed with the
Supreme Court.”^[5]

Respondents maintain, however,
the opposite view upon the theory that the decisions relied upon by petitioner
were based upon the provisions of the old Election Law,^[6] which – they claim – have been subsequently
amended.^[7] We do not find, however, any material
difference between the old and the new law, pertinent to the issue under
considera­tion, to justify the conclusion drawn therefrom by respondents
herein.

Moreover, it is clear to
us that the stand taken by the lower court was extremely technical and highly
imprac­tical, apart from tending to defeat one of the major objec­tives of the
applicable law.

The main issue raised –
adequately or sufficiently, according to respondent Judge – in Astorga’s
protest is whether or not “the board of election inspectors (had) read and
credited in favor of the protestee some eighty (80) ballots wherein the
protestant was voted for mayor.” Obviously the simplest, the most
expeditious and the best means to determine the truth or falsity of this
allegation is to open the ballot box and examine its
contents.  To re­quire parol or other
evidence on said alleged irregularity before opening said box, would have
merely given the protestee ample opportunity to delay the settlement of the
controversy, through lengthy cross-examination of the wit­nesses for the
protestant and the presentation of testimo­nial evidence for the protestee to
the contrary.  As held in Cecilio vs.
Belmonte (supra), this “would be to sanction an easy way to defeat
a protest.”

Indeed, had the box in question been opened, the exami­nation of
its contents – particularly, that of no more than eighty (80) ballots for
Astorga, allegedly read and credited in favor of Lim – could have been
completed in one (1) or two (2) hours. 
Instead, the action taken by respondent Judge has delayed the
disposition of the protest for over three (3) years, or 80% of the term of the
office involved.  Thus, the lower court
had committed not only an error of judgment, but, also, a grave abuse of
discretion.

WHEREFORE, the orders complained of are hereby set aside
and respondent Judge is directed to immediately open the bal­lot box in
question and proceed with the examination of its contents, in accordance with
law.  Costs against
respondent Edita Lim.

IT IS SO ORDERED.

Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, Zaldivar,
Sanchez, and Castro, JJ.,
concur.

^[1]
Hontiveros vs. Altavas, 24 Phil.
632.

^[2]
Lopez vs. Diaz, G. R. No. 24604, unpublished.

^[3]
De la Merced vs. Revilla, 40 Phil.
190.

^[4]
Cecilio vs. Belmonte, 48 Phil. 243, reiterated in Cuevas vs.
Lesaca, 56 Phil. 25.

^[5]
Pareja et al. vs. Narvasa, et al., 81 Phil. 22.

^[6]
“Upon petition of an interested party, or of its own accord if the
interests of justice require, said court shall forthwith cause the
registration lists, ballot boxes, ballots, and other documents used at such
election to be brought before it and examined, x x x.” (Sec. 479, Revised
Administrative Code) (Un­derline ours.)

^[7]
“SEC. 175. 
Judicial counting of votes in contested elections.  – Upon the petition of any interested party,
or motu propio, if the interests of justice so require, the court shall
immediately order that the copies of the registry lists, the ballot boxes, the
election statements, the voters’ affidavits, and the other documents used in
the election be produced before it and that the ballots be examined and the
votes recounted, and for such purpose it may appoint such officers as it may
deem necessary and shall fix the compensation of each at not less than five
pesos but not more than fifteen pesos for every election precinct which they
may completely revise and report upon.” (Sec. 175,
Revised Election Code of 1947.)