G.R. No. L-29610. March 28, 1969
ALIM BALINDONG, PETITIONER, VS. COMMISSION ON ELECTIONS AND USO DAN AGUAM, RESPONDENTS.
SANCHEZ, J.:
Two of the contenders for the mayorship
of Ganassi, Lanao del Sur, in separate petitions, direct attention for review:
(a)
Alim
Balindong, on original petition for certiorari
and mandamus with preliminary mandatory injunction, in L-29610, of that portion
of the decision of the Commission on Elections (Comelec)
in Election Case RR-612, declaring invalid the election return copy for the
ballot box in Precinct 8, Ganassi, Lanao del Sur, and directing the
board of election inspectors of Precinct 8 to file a petition for correction of
the votes cast for said Alim Balindong;
and
(b)
Uso
Dan Aguam, on appeal by certiorari, in
L-29617, of that portion of the same decision annulling the canvass and
proclamation of said Uso Dan Aguam
as Mayor-elect of Ganassi, made by the municipal
canvassing board.
This Court issued a restraining order against the Comelec and candidate Uso Dan Aguam.
The petitions, as they require a look into a common factual
background, are to be resolved together.
During the 1967 general elections, the following, with their
respective party affiliations, were amongst the mayoralty candiÂdates for Ganassi: Daud Marohombsar official
candidate of the Nacionalista Party; Uso Dan Aguam – Liberal Party
official candidate; and Alim Balindong
– Independent Liberal Party.
Uso Dan Aguam
was proclaimed Mayor-elect of Ganassi by the
municipal board of canvassers on November
20, 1967.
On November 21, 1967,
Alim Balindong, apparently
unaware of the proclamation of Uso Dan Aguam, filed suit in the Court of First instance of Lanao del Sur for annulment of
the elections in Precincts 5 and 8 with a prayer for preliminary injunction to
restrain the canvass and proclamation of the municipal officials-elect. The court declared itself without jurisdiction
to take cogÂnizance of the action.
On December 30, 1967,
Uso Dan Aguam took his oath
of office and started to act as Mayor of Ganassi.
“It was on January
6, 1968 when respondent Alim Balindong went to Comelec [Case
RR-612, Commission on Elections] with a petition for the annulment of the November 20, 1967 canvass and
proclamation, and for the opening of the ballot box in Precinct 8. The November 20 canvass and proclamation were
there assailed by respondent Alim Balindong
from different directions. Averment was
there made that the board of canvassers was illegally constiÂtuted; that fraud
and irregularities, which were made in connivance between the municipal
treasurer and petitioner Uso Dan Aguam,
attended the canvassing; that no notice thereof was given to said respondent
and other candidates; that the canvassing and proclaÂmation were kept under
wraps; that the election return for Precinct 8 was tampered with by making it
appear that Alim Balindong
obtained 8 votes in said precinct when in fact he obtained 13 votes; and that
as a result of such tampering, petitioner Uso Dan Aguam herein was made to win against respondent Alim Balindong by a margin of 3
votes.
The foregoing petition was met by petitioner Uso
Dan Aguam with an answer and a motion to dismiss. After making certain denials and admissions,
petitioner herein raised in Comelec the issues,
amongst others, of jurisdiction and time-bar.”[1]
On April 27, 1968,
Comelec, in a minute resolution, upheld its power to
inquire into the alleged irregularities and open the ballot box for Precinct 8.
The issue was elevated by Uso Dan Aguam to this Court in L-28955. This Court, on May 28, 1968, affirmed the power of Comelec
to “inquire into the nullity of the November 20, 1967 proclamation, and consequently to
inquire into the tampering of the election return in Precinct 8.”
Comelec investigation of Case RR-612
was resumed. The facts there elicited
and recited below, roundup the issues.
On the alleged irregularities attending the canvass and the
illegal constitution of the canvassing board, the following facts are edifying:
Shortly before the proclamation of Uso
Dan Aguarn on November 20, 1967, the municipal treasurer, upon
instructions of Comelec, appointed substitute members
to the canvassing board of Ganassi. Those appointed, admittedly recommendees of the local chapter of the Liberal Party,
were the following:
1.
Zamman Abbas vice Mayor Daud Marohombsar;
2.
Rubel Amerol vice Councilor Guinar Marohomsalic;
3.
Mustapha Aguam
vice Councilor Mama Rote (Dilna);
4.
Nor Marohombsar
vice Councilor Murad Marohombsar;
5.
Macaponton
(Marohomsalic) Macalipot
vice Councilor Tocod Mangandag
;
6.
Tambalilid
Bongaros vice Councilor Garogadi
Cabogatan; and
7.
Lukus (Lumindang) Marohombsar vice
Councilor Ating Tangcolo.
Amongst the vacancies filled were those of Mayor Vaud Marohombsar and Councilors Tocod Mangandag and Garogadi Cabogatan, who were all
elected to their respective positions in 1963 as Liberal Party candidates but
who ran for reelection in 1967 under the Nacionalista
Party.
Comelec’s instruction, per Res. No.
RR-544 promulgated on September 11,
1967, was that municipal treasurers must notify all candidates and
members of the canvassing board, amongst others, of the date, time and place of
the meeting of said board. But the
municipal treasurer of Ganassi issued written notices
to the mayoralty candidates that the canvassing was “temporarily set”
at the PC Barracks in Pindolonan, Ganassi,
at 9:00 a.m. on November 20, 1967 “as soon as the said
Board is duly constituted.” The notices were served by reelectionist
candidate Murad MarohombÂsar
and substitute member of the Ganassi canvassing board
Lukus Marohombsar.
To be noted is that the canvassing did not actually take place in
Pindolonan, Ganassi. What, actually took place was, as stated by Comelec in its decision, as follows:
“On the scheduled time and date of canvassing, no candidate
appeared, except Candidate Murad MaroÂhombsar,
the one who served the notices.
Following the advise of Lt. Servando Albarico, an Army Officer detailed in Ganassi
to maintain peace and order, and upon approval by the Commission Provincial
Election Supervisor, Atty. Mamasapunod Aguam, the canvassing in Ganassi
was transferred to Camp Keithly, Marawi City. The new place of canvass is around 39 Kms. away and takes about 2 to 3 hours ride from Ganassi.
Municipal Treasurer Buruan admitted that
he did not send any notice to the candidates as regards the transfer of the
place of canvass to Marawi
City, because Lt. Albarico allegedly volunteered to notify the parties
concerned. For this matter, a soldier
was allegedly sent to give the necessary notices of transfer. The same municipal treasurer, however,
admitted that he did not verify whether the parties concerned were duly
notified of said transfer to the new place of canvass.”[2]
Murad Marohombsar
testified[3]
that the municipal treasurer waited in his house, not in the PC Barracks in Pindolonan where canvassing was “temporarily
set”, as the notice stated. He
further testified that except for Vice-Mayor Mohamad
Map, the members of the canvassing board converged in the house of the
municipal treasurer and it was in said house that Lt. Albarico
appeared and suggested that the meeting be transferred to Marawi City. AccordÂing to Murad,
the party headed by the municipal treasurer left the latter’s house for Marawi City at around 11:00 a.m., passing only briefly by
the municipal building to get the things needed for the canvass.
Thus, the actual canvass proceeded in the afternoon of the same
day – in Marawi
City. The precinct-by-precinct votes the board
credited the two candidates follow:
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At 5:00 p.m. Uso Lan Aguam
was proclaimed Mayor-elect of Ganassi with 575
votes. His closest rival, Alim Balindong, obtained 572
votes.
Looming large in the resolution of these cases is the fact that
the original entries in the return for Precinct 8 would show that
Uso Dan Aguam received
“89” votes and Alim Balindong
“13” votes. If the votes were
to be computed on this basis, Uso Dan Aguam would have obtained 575 votes to Balindong’s
577 votes. In which case, Alim Balindong should have been
proclaimed Mayor-elect, with a 2-vote margin.
But the board of canvassers used in the canvass the changed
entries – as to Balindong’s votes – in the election
return from PreÂcinct 8. This altered
election return shows that the word “Thirteen” and the figure
“13” corresponding to the votes of Alim Balindong were crossed out and, instead, the word
“Eight” and figure “8” were placed. Thus it is, that Alim
Balindong’s votes were effectively reduced from 577
to 572. This spells the difference which
accounts for the proclamation of Uso Dan Aguam as Mayor-elect with a majority of 3 votes.
Those who actually composed the 8-member canvassing board of Ganassi that convened in Marawi City
for the canvass and proclamation as shown by the certificate of canvass and
proclaÂmation[4]
were the following members:
1.
Mustapha Aguam,
Chairman;
2.
Raubel Amerol, Member;
3.
Tambalilid
Bongaros, Member;
4.
Lukus (Lumindang) Marohombsar, Member;
5.
Nor Marohombsar,
Member,
6.
Zamman Abbas, Member;
7.
Macaponton
(Marohomsalic) Macalipot,
Member; and
8.
Kiram L.
Buruan, Treasurer/Secretary.
The participation of Ganassi municipal
treasurer Kiram L. Buruan
in the canvass and proclamation is explained by Comelec,
thus:
“Vice-Mayor Mohamad Map, a member of
the canvassing board who was not a candidate in the 1967 elections, was not
also notified of the transfer of canvass to Marawi City. His absence in the session of November 20, 1967 as shown by the
minutes of the canvassing, further confirms the absence of
proper notice of said transfer. By signing the proclamation paper (CE Form
No. 85) and the canvassing sheet (CE Form No. 87), Municipal Treasurer Buruan obviously acted in place of said absent Vice Mayor
to complete its membership to eight.”[5]
Comelec also proceeded to investigate
the charges of falsification of the election return from Precinct 8. That investigation revealed the condition of
the election return copies. Says the
decision under review:
“Presented to the Commission were the three official copies of
the election return for Precinct 8, namely, the copy for the Commission on
Elections, the copy for the municipal treasurer and the copy for the ballot
box. The latter was retrieved by the
Commission from the ballot box of Precinct 8 in the presence of counsels for
both parties. The Commission copy shows
the altered entry of votes for Alim Balindong from
13 to 8. The municipal treasurer’s copy shows
similar changes of BalinÂdong’s votes
from 13 to 8. The ballot box copy shows
that the entries for all offices both in the names of the Candidates and the
votes received in words and figures, are original entries written in ink
without alterations and the votes written for Balindong
is ‘thirteen’ in word and ’13’ in figure, but said return was signed only by
the LP inspector. The provincial
treasurer’s copy was not presented to the Commission, but the petitioner
presented the minutes of the canvassing by the Lanao
del Sur Provincial Board of Canvassers on December 5,
1967, wherein manifestations, without any objection, were made that the entry
of votes for Balindong in
the Office of Mayor was also altered
from 13 to 8 (P. 25, Exh. G-1 and 0-2).”[6]
As to the ballot box copy, Comelec gave
the following findings:
“The election return retrieved from the ballot box of Precinct
B, Ganassi, contains original entries written in ink,
instead of carbon impressions, as normally it should be. This is not a valid document for it bears
only one signature, the original signature of the LP Inspector, and all the
three members inÂcluding said LP Inspector who testified in this case disowned
the preparation of said ballot box copy of the election return. The LP Inspector who admitted his signature
therein testified that when he signed the same, the original entries in ink
were not in the document.”
Comelec, on September 24, 1968, came out with its disputed
decision, the dispositive part of which is quoted in
full as follows:
“WHEREFORE, the Commission hereby RESOLVES:
1. To annul the canvass and
proclamation made by the respondent Municipal Board of CanÂvassers of Ganassi, Lanao del Sur, on November 20, 1967, because said Board was illegally
constiÂtuted and for lack of notice of said proceedings to the candidates and a
member of said canvassing Board;
2. To declare invalid and of
no value the copy of the election return for the ballot box of Precinct 8, Ganassi, Lanao del Sur;
3. To declare that there is
no valid entry of votes cast for petitioner Alim Balindong in the existing copies of the election return for
Precinct 8, Ganassi, Lanao
del Sur – the copy for the ComÂmission on Elections,
the copy for the Provincial Treasurer, and the copy for the Municipal
Treasurer;
4. To direct the Board of
inspectors of PreÂcinct 8, Ganassi, Lanao del Sur, to file a petition
with the Court of First Instance of Lanao del Sur for correction of the election return for said preÂcinct,
on the votes cast for Candidate Alim Balindong;
5. To direct the Municipal
Treasurer of Ganassi, Lanao
del Sur, as the authorized representative of the
Commission on Elections, to reconstitute the Municipal Board of Canvassers of Ganassi, Lanao del Sur by appointing as substitute members thereof, the recommendees of the authorized representative of the Nacionalista Party in the municipality, to take the place
of the disqualified members, namely: Daud Marohombsar, Tocod Mangandag, and Garogadi Cabogatan;
6. To suspend the recanvassing of the votes cast for the office of Mayor
pending action on the election return of Precinct No. 8 to be taken under Par.
4 hereof;
7. To direct the Municipal
Board of Canvassers of Ganassi, Lanao
del Sur, as reconstituted, to recanvass
all the votes cast for the municipal officials of Ganassi,
Lanao del Sur, except for
the Office of Mayor, using the Municipal Treasurer’s copies of the election
returns for all the eleven precincts of said municipality, and, thereafter, to
proclaim, all the winning candidates for the elective offices of Ganassi, except for the Office of Mayor; and
8. To designate a lawyer of
the Commission to supervise the recanvass of votes
and proclamation of the officials-elect of Ganassi, Lanao del Sur, as directed in
paragraph 7 hereof, which shall be made in Camp Keithley,
Marawi City, on the date and time) to be fixed by
said supervisor, who shall also carry out the other provisions of this
decision.”[7]
1. The validity of the November
20, 1967 canvass and proclamation of Uso
Dan Aguam as Mayor-elect is the issue in L-29617. There surfaces a number of reasons for
thumbing down said canvass and proclamation for being invalid.
The canvassing board of Ganassi was
illegally constituted. Three substitute
members thereof were recommended by the local chapter of the Liberal Party, and
not by the local chapter of the Nacionalista Party to
which the substituted members belonged at the time of their
disqualification. This violates Section
167 of the Revised Election Code as clarified by the ruling in Ibuna vs. ComÂmission on Elections.[8]
The Ibuna case explains that said Section 167
requires the substitute members of the municipal board of canvassers to be recommendees of the political party to
which the substituted members belonged at
the time of their disqualification.
While granting that Ibuna was
promulgated after Comelec issued its instruction to
the municipal treasurer of Ganassi to appoint as
substitute members of the canvassing board, the recomÂmendees
of the party to which the disqualified members
belonged at the time of their election
in 1963, this fact does not remove the illegal taint from the
appointments. Ibuna
merely declared the true impact of the existing law in the Revised Election
Code, viz:
“SEC. 167. Municipal
board of canvassers.- (a) The municipal council shall
constitute the muniÂcipal board of canvassers, excluding the members who are
candidates and who shall be replaced by the Commission en Elections with
registered voters of the same party.”
At the time Comelec issued the
directive to the municipal treasurer, the aforequoted
was, as it continues to be, the existing law.
The Comelec instruction is, therefore,
contrary to law. The appointments made
by the municipal treasurer in compliance with said instruction cannot fare any
better. They, too, are illegal.
Giving added cause for invalidity of the canvass is the finding
of Comelec that Vice-Mayor Mohamad
Adap, a member of the canÂvassing board, and the
candidates, were not notified of the transfer of the boards meeting to Marawi City. Inspite of the
protestations of Uso Dan Aguam
in his petition that Vice-Mayor Mohamad Adap and the candidates were actually notified or had
knowledge of the transfer of the meeting of the canvassing board to Marawi City,
a credibility gap exists. The municipal
treasurer did not verify whether the vice-mayor and the candidates were
actually notified of the transfer to Marawi City
by the PC soldiers.[9]
Besides, no written notice of such transfer was issued. This contravenes Comelec’s
explicit instructions to municipal treasurers contained in Comelec’s
Resolution RR-544, promulgated September
11, 1967.
In, this case, a notice of the transfer to Marawi City
is important. The first notice allegedly
issued by the Municipal Treasurer on November 19, 1967 served to notify those
concerned that the canvass was “temporarily set” at the PC Barracks
in Pindolonan, Ganassi at
9:00 a.m. of November 20, 1967. There
was nothing certain about the meeting in Pindolonan. The said notice of November 19 (for the
meeting the next day) also conveyed, the idea that the board of canvassers had
not, as of then, been constituted. Is it
any wonder then that many of those notified did hesitate to go to the tentative
meeting at the tentative place?
But even if such notice were actually served, the municipal
treasurer himself did not wait at the PC Barracks in Pindolonan,
the temporary meeting place, but at his residence. This and the fact that the members of the
canvassing board converged at his residence and not in the PC Barracks is
indicative of an earlier intention not to hold the meeting at the PC Barracks
at all, or at least, the uncertainty of the meeting and the place thereof.
Thus, for failure to give sufficient notice to a member who was
not disqualified, and to the candidates, the meeting of the board of canvassers
of Ganassi was null and void.[10]
Such failure is, at least, violative of the
regulations of Comelee [in RR-544].
Besides, even if it be conceded that Vice-Mayor Adap was actually notified of the transfer to Marawi City
but failed to attend, still, Kiram L. Buruan, the municipal treasurer, should not have taken his
place. By so doing, Buruan
exceeded the instructions given to him by Comelec. As a representative of Comelec,
he should have inhibited himself. For,
in the appointment of substitute members to the municipal canvassing board,
party affiliation is – by law – the prime consideration. He thereby subverted, the intention of the
election, code. No law authorizes him to
sit as member of the canvassing board.
Why should he cast himself into the melee of petty political rivalry?
2. Worse still is that the
members of the board of canÂvassers failed to follow the line of proper
canvassing of election returns. In the
election, law scheme, the canvassing board performs a definite role. Pithily described, “it is the
ministerial function of a board of canvassers to count the results as they
appear in the returns which on their face do
not reveal any irregularities or falsities.”[11] A
contrario a canvass based on tampered returns
is illegal.[12]
Alleged tampering must thereÂfore be ascertained, first by the canvassing
board, then by Comelec.[13]
The municipal treasurer’s copy of the return from Precinct 8 used
by the board reveals on its face palpable material alterations as to Balindong’s votes.
The change in, rather subtraction from, Balindong’s
votes made the difference between victory and defeat. Such alterations were not judicially
authorized. Nor were they even initialed
by the inspectors. Therefore, as far as
the canvassing board was concerned, the election return copy before it,
contained unauthorized alterations which are irregularities that could prevent
a proper canvass and necessitate an investigation. Yet, the board jumped investigation and
canvassed the votes based on returns palpably tampered.
This is another reason why Comelec’s
conclusion that the November 20, 1967
canvass and proclamation are null and void must be affirmed.
3. The most serious dispute,
we perceive, is as to the number of
votes that should be counted for Alim Balindong in Precinct 8.
To repeat: If we count his votes
as “8”, as Uso Dan Aguam
would have it, Use Dan Aguam would be credited with
575 votes and Alim Balindong
572 votes, or a difference of 3 votes in favor of the former; if, on the other
hand, the votes for Mini Balindong were tallied as
“13”, he would receive a total of 577 votes while Uso
Dan Aguam would garner the same 575 votes, but Alim Balindong would have to be
declared winner by 2 votes.
The first question that presents itself is this: Under the circumstances, what should have been
the procedure in ascerÂtaining the true votes cast for Precinct 8 for purposes
of proÂclamation?
Comelec’s view is that the board of
inspectors should file a petition for correction in the Court of First Instance. This remedy is now unavailing. What we are confronted with are tamÂpered
returns. And then, a petition for
judicial correction of the returns is a privilege left to the members of the
board of inspectors themselves. More
than this, “unanimous consent of all the members of the board” is
required to effect correction.[14]
Courts may not coerce inspectors to file petitions for correction.[15]
It is a disÂtinct remedy, unrelated to the investigatory procedure for tampered
returns before Comelec.[16]
4. When and by whom was the tampering really made?
Testimony furnished by the members of the board of inspectors
before the Comelec leaves much to be desired. Their oral evidence shows that the election
returns were prepared by the chairman of the board of inspectors; that after
publication of the results of the elecÂtion and the board of inspectors had
issued the certificates of votes of candidates to the different watchers and
after the watchers had gone, it occurred to the chairman of the board of
inspectors to suggest that the returns be checked with the tally sheet. And, it was then that they allegedly
discovered their “mistake”:
that the number of votes for Alim Balindong, as shown in the tally sheet, was “8”;
and that the returns had to be corrected to show that Alim
Balindong received merely “8” instead of
“13” votes. Of course, the
known result of this alteration is that Uso
Dan Aguam was made to win with a majority of 3 votes.
This explanation is shot through with holes.
First. An
examination of the return itself would show that the alleged correction was
made in the case of only one candidate, Alim Balindong. Although
testimony there was that such alteration was effected by the chairman himself, Comelec found otherwise.
Comelec declared that the alterations were
done in blue ink, while the original entries – which admittedly were made by
the chairman himself – were in red ink; and that the substituted word
“Eight” was written “with apparently different
handwriting.” One has merely to look at the return, Exhibit Q, to be
convinced that the writing with a heavy hand of the corrected word
“Eight” and the corrected figure “8” is totally different
from the light handwriting of the rest.
Second. Really, it
is hard to believe that the inspectors, could have so unceremoniously made
corrections after they issued the certificates of votes to the watchers. They knew that by so doing they would violate
Section 154 of the Election Code, which reads:
“SEC. 154. 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.”
Third. But if it
were true that these corrections were made shortly after the inspectors issued
the certificates of votes to the watchers, it is strange that these corrections
did not bear the initials of the members of the board of inspectors. The latter did not even draw up formal
minutes of that important proceeding so decisive of the
political fortunes of candidates Balindong and Aguam.
Fourth. The
allegedly genuine tally sheet which the inspectors claim to be the true tally
sheet and which was found in the ballot box does not as much as carry the signature
of even one of the inspectors, The spaces in the tally sheet corresponding to
the signatures of the members of the board were indeed in blank. The seal of this tally sheet is four-fifths
broken.
Fifth. Corrections
were allegedly made after everybody had gone and the inspectors and the poll
clerk were left alone, But, why rely on the unsigned tally sheet when the votes
were also tallied on a blackboard in the ‘precinct itself for others to see?
Sixth. If there was
a mistake, that mistake could have readily been detected. Because the evidence of record reveals that
while’ counting was being made, the watchers were there, watching and
witnessing the whole proceeding. It is
quite reasonable to assume that if the real votes counted were not merely “13”
but “8” for Balindong, that could not have
easily escaped notice, what with the election officials themselves counting and
tallying and the watcher’s of the opposing candidates listening and observing.
Seventh. No reason
is given why after the watchers had left, like a bolt from the clear blue, it
should occur to these inspectors to check the returns. They declared that they altered all the
copies of the returns. And yet, as it
turned out, the ballot box copy, which by the way was signed only by the LP
inspector, remained unaltered.
Eighth. Inspite of ail of these alleged mistakes, not one of the
inspectors breathed out a word. They did
not recall the certificates of votes they issued to the watchers. Neither did they issue corrected
certificates. Nothing in the record
would suggest that they took steps to notify Comelec,
the losing mayorÂalty candidates, especially Alim Balindong, to enable the latter to take step’s to protect
his own interests. Let us not for a
moment forget that Alim Balindong
ran as an independent LP without insÂpectors.
That there was tampering of the returns from Precinct 8 we do not
doubt. Mute but formidable is Exhibit Q
– the copy of the return for Comelec. It shows that the tampering from
“Thirteen” to “Eight” was by a hand different from that of
the chairman who wrote the original words and figures in said returns. Such falsifiÂcation was obviously fathered by
one without scruples and done long after the counting of the votes and the
certification thereof by the inspectors.
The people’s will expressed at the polls, it must be stressed, should
not be frustratingly hamstrung by permitting use of false, tampered or spurious
returns or returns illegally corÂrected by wrongdoers in the hope of grabbing
the proclamation for a candidate who, to all appearances, was repudiated by the
people.
5. The factual makeup with respect to Precinct 8 may thus be
summarized as follows: Copies for the
municipal treasurer, the Comelec and the provincial
treasurer of the returns are all tampered:
“Thirteen” to “Eight” votes for Balindong. The ballot box copy containing the original
entry in ink, of “Thirteen” for Balindong,
is signed only by the LP inspector. The
tally sheet, on which the inspectors’ testimony was principally built, is unsigned,
its paper seal four-fifths broken. The
custody of the ballot box and the sealing of the same are riddled with
irregularities. Even the integrity of
the ballot box is open to grave doubts.
It would seem to us that the only reliable and untampered documents reflecting the results of the election
in Precinct 8 are the certificates of votes of candidates issued to the
watchers. But said certificates
certainly cannot serve as returns for canvassing purposes. Judicial recount cannot legally be made either. Under Section 168, in relation to Section
163, of the Revised Election Code, such remedy is possible only “[i]n case of contradictions or discreÂpancies between the
copies of the same statements.” And, jurisprudence that has already taken
root is that said discrepancies must appear amongst the authentic returns, not
tampered returns.[17]
6. But is it still possible to canvass the return from PreÂcinct
8?
There is an impressive unanimity on the part of all conÂcerned –
the members of the board of inspectors included – that the original entries of
votes in the election return for Precinct 8 for Alim Balindong consist of the word “Thirteen” and the
figure “13”. Before the
unauthorized alteration of those entries, the said return bore the
guarantee of the election officials’ signatures
and the scrutiny of the watchers of
the opposing candidates.
It makes eminent sense to say that such election return – in its
original form – should not be allowed to cease as an instrument embodying the
expression of the people’s will. A
way of preserving the integrity of the
election return, we believe, is by knocking
off the falsified words and figures and
restoring the original.
Even conceding that the alteration of “13” to
“8” was done by the election inspectors, yet such act was
unauthorized by, and conÂtrary to, the provisions of Section 154 of the
election code. The inspectors could not
plead ignorance to this, on the assumption that they really discovered this
“mistake”. Such is a strategem we are not prepared to legitimize. For, the dispiriting lesson in past elections
is that election returns are tampered to favor a candidate. The election inspectors’ strained explanation,
accordÂingly, is no substitute for the fact that the original words and figures
in the returns were unceremoniously changed.
More. The original, entry
of “13” votes for Balindong is fully
corroborated by a hard-to-fault piece of evidence – the official cerÂtificates
of votes a candidates for municipal mayor signed by all the inspectors and the
poll clerk as required by Section 153 of the election code. The issuance of these certificates certainly
measures the emptiness of the inspectors’ proffered explanation of
“mistake”. For, the said
certificates of votes of candidates bear the solemn representation to all and
sundry by the chairman, the LP inspector, the NP inspector and the poll clerk
(see Exhibits H and I) that “WE HEREBY CERTIFY that the candidates
mentioned below have obtained in this precinct the votes set opposite their
respective names:
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It must be remembered that these certificates of votes of
candidates are only given after the oral and public announcement of the votes
polled[19]
and after making the returns for the ballot box, the municipal treasurer, the provincial
treasurer and Comelec.[20]
This brings to mind the true functions of a certificate of votes. As well expressed in a case,[21]
they are: “(a) to prevent or to
deter the board of inspectors or treasurers from altering the statements,
because they know of the existence of such certificates (See Benitez v. Paredes, 52 Phil. 18); (b) to advise the candidate (for
mayor, in this case) definitely of the number of his votes; so that in case the
election statement subÂmitted to the municipal board of canvassers does not
tally with the certificate in his hands, he may proceed to the Provincial
Treasurer’s Office or Commission on Elections and secure official copy of the
statement there (if it agrees with his certificate), and then present such copy
to the board of canvassers (and the court) to demand the remedy provided by
Sections 163 and 168″; or (c) to serve as “evidence in the protest
and in the subsequent prosecution of the inspectors, if any.”
7. Election returns should be maintained inviolate. Once the return is made and the certificates
of votes of candidates are issued, no one, not even the inspectors themselves,
may make any change without authority.
We should not place at the whim of the inspectors, or any person for
that matter, the fortunes of the candidates for a given position. Because, the candidates’ fate depends in a
great measure upon the election return preserved and unsullied, and unspoiled
by hands of man. Tampering, falsiÂfication,
spoliation of returns or making spurious returns must have to be discouraged.
We, accordingly, rule that when an election return has been
tampered and it is still possible to salvage and ascertain the original entries
of votes prior to such tampering, the votes originally entered
should be considered as votes in said
return for purposes of canvass.
Indeed, our view on this score is not new, In Pacis
vs. Commission on Elections (the second Pacis case),[22] Comelec “made use of the services of the NBI to
determine the original erased entry for Pacis and the
testimony of the chairman and poll clerk of the precinct [Precinct 19].”
The original votes of the candidates, as originally entered, were then
ascertained through this procedure. We
held that Comelec did not abuse its discretion. We pronounced that: “if the true result of the voting in
Precinct 19 could still be determined, it is within Comelec’s
power to direct that they be used in the canvass. And this was done.”
Here, it is conceded that the original entry of votes for Balindong in the election return from Precinct 8 is thirteen. This number should be credited in his favor.
For the reasons given, JUDGMENT is hereby rendered:
1.
Granting the petition of Allan Balindong for certiorari and mandamus in L-29610 and
declaring null and void the decision of the Commission on Elections of
September 24, 1968 insofar as (a) it pronounced that there is no valid entry of
votes cast for petitioner Alim Balindong
in the existing copies of the election return for Precinct 8, Ganassi, Lanao del Sur, and (b) insofar as it directs the board of inspectors
of Precinct 8, Ganassi, to file a petition with the
Court of First Instance “for correction of the election return for said
precinct, on the votes cast for Candidate Alim Balindong“;
2.
Directing the Commission on
Elections to instruct the reconstituted board of canvassers of Ganassi (a) to convene immediately for the re canvass of
all the returns of the votes for Mayor a Ganassi in
all the precincts, and (b) for purposes of such recanvass,
to count thirteen (131 votes for Alim Balindong in the return for Precinct 8 and (c) thereafter,
forthwith to proclaim the winning candidate; and
3.
Affirming said decision of the
Commission on Elections in all other respects.
Let a copy of this decision be forwarded to the Provincial Fiscal
of Lanao del Sur for such
action as he may deem proper in the premises.
Costs against Uso Dan Aguam.
SO ORDERED.
Concepcion, C.J., Reyes, JBL, Dizon, Makalintal, Zaldivar, Ruiz Castro, Fernando, Capistrano, Teehankee, and Barredo, JJ., concur.
[1]
Taken from the decision of this Court in L-28955, Uso
Dan Aguam, petitioner, vs. The Commission on
Elections and Alim Balindong,
respondents, May 28, 1968.
[2] See
also: Tr., July 9, 1968, p. 96.
[3]
Tr., July 9, 1968, pp. 33 et
seq.
[4]
Exhibit 15 for Respondent Uso Dan Aguam
in L-29610.
[5] Emphasis
supplied.
[6]
Emphasis (except on “original“) supplied.
[7] Rollo of L-29610, pp. 36-37.
[8]
21 SCRA 1457, 1460. Ruling reiterated in Pacis vs.
Commission on Elections, 22 SCRA 539, 553.
[9]
Tr., July 9, 1968, p. 97.
[10] Pacis vs. Commission oh Elections, supra, at
p. 552, citing Campos vs.
Commission on Elections, L-28439 (Resolution), December 29, 1967.
[11] Demafiles vs. Commission on Elections, 21 SCRA 1462,
1468; emphasis supplied.
[12] Abes vs. Commission on Elections, 21 SCRA 1252,
1256.
[13] Ong vs. Commission on Elections, 22 SCRA 241,
249-251.
[14] Peña vs. Tengco, 21 SCRA
1398, 1401.
[15] Astilla vs. Asuncion,
L-22246, February 29, 1964.
[16] Ong vs. Commission on Elections, supra,
pp. 251-252.
[17] Espino vs. Zaldivar, 21
SCRA 1204, 1212-1215, citing cases; Ong
vs. Commission on Elections, supra.
[18]
Exhibits H and I in L-29610.
[19]
Section 153, Revised Election Code.
[20]
Sections 151 and 152, Revised Election Code.
[21] Parlade vs. Quicho,
L-16259, December 29, 1959.
[22]
25 SCRA 377, 389-390.