G.R. No. L-28666. May 20, 1969
ESPERANZA SOLIDUM, PETITIONER, VS. THE HONORABLE FELIX V. MACALALAG, IN HIS CAPACITY AS JUDGE OF THE COURT OF FIRST INSTANCE OF AKLAN, AND CATALINO SULAM, RESPONDENTS.
SANCHEZ, J.:
Directly under attack in this original action before this Court
for certiorari and prohibition, with prayer for a writ of preliminary
injunction, is the jurisdiction of the Court of First Instance of Aklan to hear and determine Election Case 1649 of the said
court,[1]
wherein petition was filed for the correction of election returns and/or
judicial recount of votes, with mandamus and prohibition.
We gave due course to the petition. We did not order issuance of the writ of
preliminary injunction prayed for.
Two of the candidates for the eight council seats in the Municipality
of Ibajay,
Aklan, in the 1967 elections were
herein petitioner Esperanza Solidum and Catalino Sulam, private
respondent. On November 20, 1967, while the municipal board of
canvassers was engaged in its task of canvassing, it was discovered that the
return from Precinct 25 did not contain the name of Catalino
Sulam and the votes obtained by him. At that meeting, seven canvassers were
present (Eulado Masangcay, Gualberto Lalisan, Julian Sijera, Susana Sulam, Saturnino Solidum, Jose Conanan and Emilio Cabales). Thereupon, three of the members, said to be
Liberal Party men who constituted the minority, sued for suspension of the
canvassing. A vote was taken and they
were overruled. They walked out of the
canvassing hall to ask for the opinion of the Commission on Elections’
registrar of lbajay.
In their absence, the four remaining Nacionalista
members (Saturnino Solidum,
Jose Conanan, Emilio Cabales
and Eulado Masangcay)
continued with the canvass and proclaimed Esperanza Solidum
the eighth councilor-elect. It is of
interest to note that the total number of votes – according to the returns –
garnered by Esperanza Solidum in all the 37
precincts of lbajay was 2,486. With no vote for Precinct 25 counted in favor
of Sulam in that canvass, his total was only 2,459
votes. Sulam
would lose by 27 votes. However, if as
contended by Sulam he actually received 34 votes in
Precinct 25, he would have been proclaimed eighth councilor-elect with a seven
(7) vote margin in his favor. The
difference between the two methods of computation affects the result of the
election – between the two.
On November 22, 1967, three members of the board of election
inspectors (Carlos Daguno, chairman, Josefina Misajon, poll clerk, and Adelita Sudlon, party inspector) executed a joint affidavit before Ibajay Municipal Judge Jose M. Magallanes
stating that in Precinct 25 of Ibajay, respondent
Catalina Sulam obtained 34 votes, which was reflected
in the tally board of said precinct duly signed by the board of inspectors
thereof; that through inadvertence, the name of candidate Catalino
Sulam and his votes were omitted in the election
return; and that said affidavit was being executed for the purpose of
correcting the erroneous election return submitted by the board of inspectors.
On the same day, November 22, petitioner Esperanza Solidum took her oath of office.
Also on that day, November 22, the municipal secretary of lbajay wired the Commission on Elections for instructions
as to what to do in view of the patent mistake that attended the canvass and
the proclamation. On November 28, the
Commission wired back advising the filing of the petition for the correction of
the returns and suspension of the proclamation of petitioner.
Thus it is, that on December 1, 1967, respondent Catalino
Sulam lodged with the lower court the petition
adverted to earlier. It was there prayed
that the board of election inspectors of Precinct 25 be directed to correct the
election return therefrom, to show that Sulam received 34 votes in said precinct; or, in the
alternative, to order a judicial recount of the votes cast in that precinct, to
direct the municipal board of canvassers of Ibajay to
reassemble and recanvass the return from the precinct
aforesaid, and after such correction or after a judicial recount, to add said
votes to Sulam and thereafter proclaim him winner by
a seven (7) vote plurality over petitioner Esperanza Solidum.
Upon a P500-bond, respondent judge, on December 4, 1967, ordered
the issuance ex-parte of a writ of preliminary
injunction “enjoining, restraining and prohibiting” Esperanza Solidum “from taking her oath of office as
councilor-elect of Ibajay, Aklan,
and from assuming the powers and entering upon the exercise of the duties appertaining
to said office, until further orders from this Court.”[2]
On December 5, 1967, respondent judge directed the municipal
treasurer of Ibajay to produce before him the
precinct book of voters, the ballot boxes, the election statements, and all
other documents used in the election to the office of Municipal Councilor in
Precinct 25, and the Provincial Fiscal, the Provincial Commander and the Provincial
Treasurer to produce the keys for said ballot boxes.
On December 9, 1967,
petitioner herein filed in the court below her answer, a motion to dismiss for
lack of jurisdiction, and a motion to dissolve the preliminary injunction. Respondent judge, however, without resolving
the motion to dismiss and the motion to dissolve the writ of preliminary
injunction, instead, on January 20, 1968, issued an order stating that without
prejudice to the resolution of the pending questions in the decision if need
there be of treating them, set the hearing of the election case for February
20, 1968 at 8:00 o’clock a.m. for the reception of the evidence of respondents
therein, it appearing that petitioner therein (herein respondent Sulam) had already presented his evidence.
Also on December 9, 1967,
respondents Carlos Daguno Josefina Misajon, Adelita Sudlon and Virginia Garcia, chairman, poll clerk and
inspectors, respectively, of Precinct 25 filed their answer to the petition
below. They there averred that after the
canvass and having been informed thereof, they discovered that the name of Catalino Sulam together with the
number of votes he received as candidate for councilor in Precinct 25 have been omitted; that such omission was due to “an
honest mistake, inadvertence due to fatigue, and lack of sleep.” This
averment in their answer is supported by an affidavit unanimously executed by
all the four of them on December 8,
1967 before the Municipal Judge of Ibajay. In that affidavit, they further stated that
for purposes of correction they “hereby jointly declare and make it known
that in the above-mentioned precinct, Dr. Catalino Sulam obtained thirty-four (34) votes and this fact was
duly and properly entered in the Tally Board and Tally Sheet prepared by the
board.”
At the hearing of December
14, 1967, respondent judge, over the objection of petitioner
Esperanza Solidum, ordered the opening of the ballot
box for Precinct 25, allowed the removal for marking of the corresponding tally
sheet which was later returned inside the ballot box. It was said that respondent judge then found
that the name of Catalino Sulam
and the 34 votes he obtained in Precinct 25 appeared on the tally sheet
deposited and sealed in the ballot box.
To give time for petitioner to come to this Court, the hearing
set for February 20, 1968
was transferred to a later date.
1.
It may be well at the outset to stress
the importance of a proclamation in our election law-scheme. A pronouncement, not so long ago made but
consistently adhered to since then, in Lagumbay
vs. Climaco (1966), 16 SCRA 175, 179,
is that: “The well-known delay in the adjudication of election protests
often gave the successful contestant a mere pyrrhic victory, i.e., a
vindication when the term of office is about to expire, or has expired. And so the notion has spread among candidates
for public office that the ‘important thing’ is the proclamation; and to win
it, they or their partisans have tolerated or abetted the tampering or the
‘manufacture’ of election returns just to get the proclamation, and then let
the victimized candidate to file the protest, and spend his money to work for
an empty triumph.”
The teaching of past experience is that every effort should be
strained, every means should be explored, to ascertain
the true returns with the end in view that upon the basis thereof, proclamation
untainted by force, fraud, forgery, mistake and the like, may be made. It is true indeed that after proclamation,
the losing candidate may yet have the remedy of an election protest. But that may not prove effective. Election protests quite often take a long
time to terminate. A number of factors,
such as the almost illimitable resources of lawyers and the delays that may be
occasioned, may well frustrate the ends of the protest. Victory then may just be in sound, not in
substance. In Ong
vs. Commission on Elections, 22 SCRA 241, 254-255,
we observed that: “The overriding consideration, of course, is that,
above and beyond the narrow personal stakes of the opposing candidates, the
rights of the electorate, not to say the people, are involved. To these rights we pay full respect.”
And in De Mesa vs. Mencias,
18 SCRA 533, 538, Mr. Justice Castro aptly reminded:
“x x x It
is axiomatic that an election contest, involving as it does not only the
adjudication and settlement of the private interests of the rival candidates
but also the paramount need of dispelling once and for all the uncertainty that
beclouds the real choice of the electorate with respect to who shall discharge
the prerogatives of the offices within their gift, is a proceeding imbued with
public interest which raises it onto a plane over and above ordinary civil
actions. For this reason, broad
perspectives of public policy impose upon courts the imperative duty to
ascertain by all means within their command who is the real candidate elected
in as expeditious a manner as possible, without being fettered by
technicalities and procedural barriers to the end that the will of the people
may not be frustrated (lbasco vs. llao,
et al., G.R. L-17512, December 29, 1960; Reforma vs.
De Luna, G.R. L-13242, July 31, 1958).
So inextricably intertwined are the interests of the contestants and
those of the public that there can be no gainsaying the logic of the
proposition that even the voluntary cessation in office of the protestee not only does not ipso facto divest
him of the character of an adversary in the contest inasmuch as he retains a
party interest to keep his political opponent out of the office and maintain
therein his successor, but also does not in any manner impair or detract from
the jurisdiction of the court to pursue the proceeding to its final conclusion
(De Los Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo
vs. Hernandez, 62 Phil. 584, 587; Galvez vs. Maramba, G.R. L-13206).”
2. It is in the context just expressed that we make our approach
to the problem of ascertaining whether or not the proclamation of November 20, 1967 should merit the
imprimatur of this Court.
There is seemingly a purpose firm on the part of the four members
of the board of canvassers to railroad the proclamation in the hope of creating
a status of proclaimed candidate on behalf of herein petitioner. It is easy enough to understand that upon
examination of the return from Precinct 25, a mistake must have been
committed. To be recalled at this point
is Section 150 of the Revised Election Code which provides that the return
shall show “the total number of votes polled by each candidate, writing
out the said number in words and figures.” We are certain that the members
of the board of canvassers are well posted with this legal provision. Then, the canvassers must have observed at
least from the first 24 precincts that the name of Sulam
and the votes he obtained were entered in the respective returns. There are therefore strong grounds that point
to the fact that if the name of candidate Sulam does
not appear in the return from Precinct 25, it is, as stated by the chairman,
the poll clerk and the two inspectors, because of “an honest mistake,
inadvertence due to fatigue, and lack of sleep” and “done without any
malice or deliberate intent on the part of the board or the individual members
thereof to injure, damage or prejudice any particular person, candidate or
political party.”
In Javier vs. Commission on Elections,
L-22248, January 30, 1965, the municipal board of canvassers found that in the
election return from Precinct 4 of Culasi, Antique,
respondent candidate for Mayor was credited with 23 votes only, whilst the
tally board of the same precinct showed that he obtained 83 votes. The board of inspectors of Precinct 4
unanimously filed a verified petition with the board of canvassers requesting
permission to correct the election return concerned inasmuch as the
discrepancy in the votes would materially affect the result of the
election. The Comelec
representative instructed the board to suspend the canvass. When the board refused, Comelec
by telegram also ordered suspension of the canvass. The board of canvassers however proceeded
with the canvass and proclaimed petitioner. This Court, in ruling that the proclamation
was null and void, stated that: “Where the board of canvassers, as in this
instance, with knowledge that the return from one precinct is undoubtedly
vitiated by clerical mistake, continued the
canvass and proclaimed a winner based on the result of such canvass, the
proclamation cannot be said to have been made in faithful discharge of its
ministerial duty under the law.”[3]
The board of canvassers here should have suspended the canvassing. After all, it was only November 20 then and
the assumption of office of the newly elected municipal officials was to take
place on the following January 1. No
appreciable damage could have been suffered by petitioner. It would have been an easy matter to check
why there was an omission in the return from Precinct 25. The election records were within easy
reach. The members of the board of
election inspectors from whom information could be obtained were local people,
residents of Ibajay.
The certificate of canvass signed by all the members of the canvassing
board, by mandate of Section 153 of the Revised Election Code, to be given out
to the watchers who may request them, could also be availed of.
The members of the board of canvassers should not be insensible to
the difference between right and wrong, between truth and untruth. While we may concede that the composition of
the board of canvassers is drawn in accordance with political party lines[4]
they are not expected to act arbitrarily, to throw overboard their sense of
fairness, to be but blind partisan followers.
They are not there to throttle the will of the people. They are public officers. They have the duty to perform their functions
well, truly and faithfully to the end that democratic processes may be
maintained. And yet, the four members of
the board of canvassers, over the objection of three others, went ahead and
made the proclamation. This act, we are
constrained to say, is beyond the bounds of accepted candor. The mischief that stems therefrom
– the fait accompli – should not be permitted to take its
toll. Proclamation, indeed, is not the
end. It may yet be annulled.
If only for the reasons just stated, the proclamation by the
board of canvassers as to Esperanza Solidum should be
stricken down.
But greater reason exists why that proclamation should not be
allowed to stand unchallenged. There is
that impressive unanimity on the part of the members of the board of
inspectors who, in their affidavit set forth in the answer to the petition below,
expressly acknowledged that in truth and in fact candidate Sulam
obtained 34 votes in Precinct 25. Not
that this unanimous statement stands alone.
Affiants made solemn representations under oath in the
same affidavit that the fact that Sulam obtained 34
votes in Precinct 25 was “duly and properly entered in the Tally
Board and Tally Sheet prepared by the board.” More than this, when the
ballot box was opened and the corresponding tally sheet taken out, it is not
disputed, not seriously at least, that the unanimous statement of the four
members of the board of inspectors aforesaid was confirmed in that Sulam received 34 votes in Precinct 25.
We thus find ourselves in no position to pronounce that
petitioner should be allowed to sit as councilor solely and exclusively upon
the basis of the proclamation heretofore adverted to. We are impelled to say so because upon the
record before us, the inclusion or non-inclusion of the votes in favor of Sulam in Precinct 25 spells the difference between prima
facie giving effect to the will of the electorate, or defeating it by
saying that the right to proclamation may be earned by pure technicality rather
than adherence to fact.
3. Petitioner challenges the jurisdiction of the lower court. Her argument is that upon Sections 163 and
168 of the Revised Election Code, there could not be any recount, for the
reason that no discrepancy or contradiction exists between copies of the same
return. Really, there is neither
discrepancy nor contradiction. And
petitioner is correct in that Sections 163 and 168 aforesaid are both out of
the way. No ground there is for a
recount. The jurisdiction of the court
on this matter of recount is quite limited.[5]
But the same thing cannot be said about the petition for the
correction of the election return.
Because, the members of the board of inspectors themselves have
unanimously represented to the court below that the omission was but a
mistake. The prayer in their answer to Sulam’s petition below is that the election return should
precisely be corrected and amended to conform to the facts. Unanimity[6]
on the part of the said members of the board of inspectors paves the way for
the application of Section 154 of the Revised 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.”
In other words, the members of the board
of inspectors are willing to make the alterations which may be ordered by the
court. The rationale behind the grant of
power to courts of first instance to order corrections of election returns is
that “[m]istakes of all sorts are too common in
human experience to justify anyone in denying the possibility of honest error x
x x and it was in
contemplation of the possibility of such errors that the lawmakers provided
for their correction with judicial approval.”[7]
In Rabe vs. Commission on
Elections, L-16341 & L-16470, May 25, 1960, we ruled that where the
three election inspectors and the poll clerk of a precinct “have signed
statements acknowledging their error” in the election return, this
“makes out a case for correction or amendment of the election returns
(statement) under the provisions of sec. 154 of the Revised Election
Code.”
4. Needless to state, canvass and proclamation must be made with
the returns complete. We have repeatedly
held that proclamation made on incomplete returns is null and void.[8]
A case which approximates the present is Mutuc
vs. Commission on Elections, 22 SCRA 662,
666. In Mutuc,
the municipal board of canvassers was confronted with an election return (from
Precinct 124 of Makati) which, while listing the
names of the candidates, contained no entry of votes cast for them. The consequent proclamation we
declared illegal. We likewise held that
the assumption of office of those proclaimed cannot affect the basic issues of
the case.[9]
Since the proclamation herein was made on incomplete returns in
the sense that the votes to which Sulam is entitled
in Precinct 25 have not been included, we rule that the proclamation is null
and void.
5. Even on the assumption that the proclamation is valid,
petitioner’s cause still fails. For,
proclamation is in umbilical dependence upon the returns. But one of such returns – that from Precinct
25 – which does not include the votes of candidate Sulam
may yet be corrected. On this point, it
has been held to be the better doctrine “that after canvassers have made
one canvass, declared the result and adjourned they may be compelled by ‘mandamus’
to reassemble and make a correct canvass of all the returns where it appears
that upon the first canvass they neglected or refused fully to perform their
duties.”[10] De
Leon vs. Imperial, 94 Phil. 680, is particularly
instructive. We there held that
“the “the power to authorize the correction”
of an election return “can only be made by
a competent court.”[11] We there likewise ruled that the remedy of mandamus for the
purpose may be availed of[12]
“within the two-week period within which an election may be
contested” and that this period is jurisdictional, for the reason that
after the lapse of that period, “the right of the candidate proclaimed to
the office is deemed vested.”[13]
Adverting to the case before us, the facts are that the proclamation
was made on November 20 and the petition for correction below was filed on December 1, 1967. Even granting that the proclamation was
valid, still the petition was filed well within the two-week period. And the Court of First Instance of Aklan has jurisdiction to hear and determine the petition
for correction.
For the reasons given, the petition for certiorari and prohibition
is hereby denied.
No costs allowed.
SO ORDERED.
Reyes, J.B.L., (Acting C.J.), Makalintal,
Zaldivar, Fernando, and
Capistrano, JJ., concur.
Dizon, Teehankee, and Barredo, JJ., took no part.
Concepcion, C.J., and Ruiz Castro, J., on official leave.
[1]
Entitled “Catalino Sulam,
Petitioner, versus Carlos Daguno, Josefina Misajon, Adelita Sudlon, and Virginia Garcia, in their capacity as Members
of the Board of Election Inspectors of Precinct 25 of Ibajay,
Aklan, Eulado Masangcay, Gualberto Lalisan, Julian Sijera, Susana Sulam, Saturnino Solidum, Jose Conanan, Emilio Cabales, Bienvenida Sevilla, in their capacity as Members of the Municipal
Board of Canvassers of lbajay, Aklan,
and Esperanza Solidum, Respondents.”
[2] Rollo, p. 25.
[3]
Emphasis supplied.
[4] Section 167, Revised Election Code.
[5] Espino vs.
Zaldivar, 21 SCRA 1204, 1212-1215, citing cases;
Ong vs. Commission on Elections, supra,
at pp. 250-251; Balindong vs. Commission on
Elections, L-21610, March 28, 1969.
[6] Estrada vs. Navarro, 21 SCRA 1514, 1516, citing cases;
Peña vs. Tengco, 21
SCRA 1398, 1401, citing cases; Felix vs. Commission on
Elections, 23 SCRA 1288, 1293, citing cases.
[7] Dizon vs.
Provincial Board of Canvassers, 52 Phil. 47, 54.
[8] Abendante vs. Relato, 94
Phil. 8, 14-15; Abes vs. Commission on
Elections, 21 SCRA 1252, 1256; Demafiles vs.
Commission on Elections, 21 SCRA 1462, 1468, citing cases.
[9] See
also: Javier vs.
Commission on Elections, supra, the facts of which and ruling thereon
have already been set forth earlier in this opinion.
[10] Agado vs. Labrador, 71 Phil. 243, 252, citing
Blaquesa vs. Municipal Council of Langangilang, G.R. 16092, December 17, 1920, quoting 15 Cyc., p. 379 et seq.
[11]
At p. 683; emphasis supplied.
[12] Citing
Municipal Council of Las Piñas vs. Judge of
the Court of First Instance of Rizal, 40 Phil. 279, 282-284.
[13]
At p. 684; emphasis supplied.