G.R. No. L-31566. February 18, 1970
ROGELIO O. TIGLAO, PETITIONER, VS. THE COMMISSION ON ELECTIONS, CORNELIO SANGA AND BOARD OF CANVASSERS OF PAMPANGA, RESPONDENTS.
SANCHEZ, J.:
Amongst the candidates for Congressman for the second district of
Pampanga in the November 1969 elections were petitioner
Rogelio O. Tiglao and respondent Cornelio Sanga, both of the Liberal Party.
Factual background of the dispute is the following:
On December 11, 1969,
the Provincial Board of Canvassers of Pampanga
started the canvass of votes cast for the office of Congressman, second
district of Pampanga.
Canvass terminated on December
17, 1969, except with respect to the returns from sixteen precincts
of San Luis, which were found to be “not authentic”. Through
a referral made on December
18, 1969, the canvassing board elevated the matter to the
Commission on Elections (Comelec).
On December 23, 1969, petitioner Tiglao
petitioned Comelec[1]
for a review of the action taken by the canvassing board on various returns: from all precincts in Apalit
and from some precincts in Candaba, Mexico, San
Fernando, San Luis, San Simon, and Sto. Tomas. He specifically questioned the returns from
Precincts 35-A and 36 of Apalit where his (Tiglao’s) name and votes were said to have been
deliberately omitted from the returns.
Having heard both the referral and Tiglao’s
petition, Comelec, on December 27, 1969, directed the board to use the Comelec copies of the returns from the questioned sixteen
precincts of San Luis, required petitioner to submit a bill of particulars on
the 76 disputed returns from Apalit allegedly
prepared at gunpoint. Comelec also resolved the questions raised as to some
returns and directed further investigation as to others. Hearing was continued on December 31, 1969.
On December 29, 1969,
however, petitioner moved to reconsider the December 27 resolution of Comelec. Averment
was made that, although the Comelec copies of the
returns from sixteen precincts of San Luis appeared to be clean, they were prepared
at gunpoint – armed men had forced the inspectors to increase the votes of
another candidate, Federico Taruc, and reduce the
votes of Tiglao but leaving untouched the votes of Sanga. It was thus
prayed that the ballot boxes of said precincts be opened, the ballots therein
counted, and new returns therefor prepared.
On December 31, 1969,
Comelec reconsidered its December 27 resolution as
to Precincts 16, 20, 21 and 23 of San Luis, the reason being that petitioner
had presented affidavits with respect to said precincts tending to show that
the returns therefrom were prepared at gunpoint. Respondent Sanga
was ordered to answer said averment. Comelec also decided that in Precinct 38, Candaba, where Tiglao’s votes
were “6” in figure but “zero” in word, the latter should be
made to prevail without prejudice to a judicial recount if the result will be
affected thereby. As to the precincts of
Apalit, Comelec gave
petitioner until January 2, 1970
to file a bill of particulars with supporting affidavits. Hearing was continued to January 5, 1970.
On January 2 and 5, 1970, petitioner Tiglao
filed his bill of particulars and supplemental bill of particulars. Supporting affidavits by members of the board
of inspectors, alleging that the returns were made at gunpoint, were presented
for 11 precincts of San Luis, namely,
Precincts 3, 4, 8, 9, 15, 16, 18, 19, 20, 21 and 23. According to petitioner, these 11 precincts
involved about 2,000 votes. As to the 76
precincts of Apalit, an affidavit of an OQC-CNEA representative
was submitted. Tiglao’s
averment in a general way is that the “[e]lection returns were prepared at
gun point.” Tiglao
further made observations on the Comelec copies of
the returns from Apalit, to wit: that the entries of votes therein were
different from those appearing in the provincial treasurer’s copies; that the Comelec copies had tamperings and
erasures; and that the Comelec copies, on the one
hand, and the provincial treasurer’s copies, on the other, were prepared by two
different hands on two different occasions.
On January 8, 1970, Comelec resolved, in reference to the 11 contested
precincts of San Luis (Precincts 3, 4, 8, 9, 15, 16, 18, 19, 20, 21 and 23),
that it has no power to open the ballot boxes thereof, count the votes therein
and prepare new returns therefor. Comelec likewise
took the view that it would serve no purpose to decide the question of whether
or not the returns from those precincts were prepared at gunpoint. And this, because, so Comelec says, although it can exclude from
the canvass gun point returns as held in the second Pacis
case,[2] “[t]he cause for Petitioner would not
be benefited by such ruling for thereby the margin of respondent Cornelio Sanga over him would be increased because in said returns
Petitioner had appeared to have garnered more votes than respondent Cornelio Sanga.” Comelec also ruled that no evidence there is to support the
claim that the 76 election returns from Apalit were
made at the point of a gun.
On January
9, 1970, Comelec declared that as to the returns from Apalit, there is no necessity to make a comparison between
the Comelec copies and the provincial treasurer’s
copies because the latter have been found by the canvassing board to be
authentic. Comelec
also ruled that all copies of the return from Precinct 8, San Luis, were
tampered but that, however, the tally sheet retrieved from the ballot box was
found clean wherein Sanga obtained “1” and Tiglao “5”. Comelec
confirmed the action of the canvassing board – which read the same number of
votes for the two candidates – with prejudice to a judicial recount if the
result will be affected.
On January
26, 1970, Comelec, resolving the remaining issues, found, inter
alia, that the returns for some precincts of Apalit were clean and regular on their faces. As for Precincts 35-A and 36, Apalit, Comelec noted the
omission of Tiglao’s name in the returns therefor due to honest mistake, but that judicial correction
which is the proper remedy can no longer be availed of because of the testimony
of the chairmen and poll clerks of said precincts that they could not remember
whether Tiglao actually received votes in said
precincts. With respect to Precinct 6,
San Simon, Comelec gave 75 votes to respondent Sanga because of the testimony of the poll clerk that the
superimposition of “75” over “0” opposite Sanga’s name was made by the
chairman of the board of inspectors but was not initialed by him due to oversight.
Comelec thus ordered the provincial board of
canvassers to reconvene and recanvass the
votes in accordance with its
resolutions and “to proclaim
the presumptive winner for Member of the House of Representatives for the 2nd District of Pampanga
at 5:00
P.M., Friday,
January 30, 1970 unless
restrained by the Supreme Court.”
It would appear, based on
the Comelec resolutions, that petitioner Tiglao would receive 13,794 votes as against respondent Sanga’s 14, 041 votes, a difference of 247 votes in favor of the latter.
On January 30, 1970, petitioner
Tiglao came to this Court on appeal by way of
certiorari asking for the following reliefs: (1) upon petitioner’s averment that
the returns from Precincts 3, 4, 8, 9,
15, 16, 18, 19, 20, 21 and 23 of San Luis, Pampanga, involving about 2,000 votes, were prepared at gunpoint,
to direct Comelec to order under its supervision the
boards of inspectors of said precincts to reconvene, open the ballot boxes of
these precincts in the presence of all parties concerned, count and tally the
votes and, on the basis thereof,
prepare authentic returns; (2) to direct
a comparison amongst the Comelec copies, the
provincial treasurer’s copies, and the ballot box copies of the election
returns from all the 76 precincts of Apalit, Pampanga, to determine whether or not the entries thereon were made by one
hand or two hands; (3) to reject the election return from Precinct 6 of San
Simon, Pampanga, for being tampered and
correspondingly deduct seventy-five (75) votes credited to respondent Sanga on the basis thereof; (4) upon the averment that
petitioner Tiglao’s name and corresponding votes were
omitted from the returns a Precincts 35-A and 36 of Apalit,
to order Comelec to recount the votes cast
therein for petitioner Tiglao and complete the returns; and (5) pending the result of the petitions for judicial recount and for
correction of returns for some precincts, to direct that no proclamation be
made of any candidate for Congressman-elect.
We stopped the
proclamation.
But the facts do not end
here. For, before petitioner came to
this Court, or more precisely, on January 27, 1970, petitions for judicial correction of
election returns under Section 154 of the Revised Election Code[3] were brought by the corresponding boards of
election inspectors in the Court of First Instance of Pampanga
(Election Cases 3653, 3654, 3655, 3656, 3657, 3658 and 3659). It was there uniformly alleged that after the
close of the polls on election day and the inspectors were about to prepare the
returns, a group of fully armed men entered their respective polling places,
fired shots in the air and people scampered for safety; that in the course of
the confusion and commotion, the inspectors made mistakes in crediting Tiglao with less number of votes,
On January
28, 1970, the Pampanga court authorized the correction of the election
returns with the result that petitioner Tiglao
received an additional number of votes – 336 votes in all.
However, on January
29, 1970, respondent
Sanga filed with the Pampanga court a petition for
intervention and alternative motion for reconsideration asking the court to
reconsider its previous decision of January 28. On the same day, January 29, the Pampanga court modified its order setting aside its January
28 decision insofar as Precincts 15, 16, 18, 20 and 21 are concerned because,
so the court said, It had no jurisdiction thereon since Comelec
had already acted on these precincts. However, the court reaffirmed its action
in connection with Precincts 9 and 19 on the given ground that Comelec did not pass any resolution over said precincts.
On February
4, 1970,
petitioners, in the cases for judicial correction, asked the Pampanga court to reconsider its January 29 order. It was there brought out that a petition for
correction is perfectly compatible with a previous finding by Comelec that the returns sought to be corrected are
authentic and/or clear returns.
On February
7, 1970, the Pampanga court ruled that the foregoing motion for
reconsideration was meritorious and the inspectors were authorized to correct
the returns from the different precincts concerned (Precincts 9, 21, 20, 19,
16 and 15) except as to Precinct 18 covered by Election Case 3658. And this, because, according to the court, Comelec had already definitely ruled that in Precinct 18
petitioner Tiglao should be credited with 36 votes
instead of zero.[4]
Thus it is, that as it
now develops, petitioner Tiglao would be credited
with 292 additional votes in the following manner:
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Respondent Sanga, however, has moved to reconsider the February
7, 1970 order of the
Pampanga court.
It must be also stated
here that petitioner Tiglao filed, on January 16,
1970, a petition for judicial recount in the Pampanga
court with respect to Precinct No. 38, Candaba,
Precincts 8 and 18, San Luis, and Precincts 35-A and 36, Apalit,[5] although as to Precincts 35-A and 36, Apalit, petitioner Tiglao had on
January 22, 1970 withdrawn his petition for recount.[6]
1. As prayed for by petitioner Tiglao,
proclamation really cannot be had under the circumstances. There are still questions pending before the
Court of First Instance of Pampanga involving the
election returns. Specifically, there is
the petition to recount the votes in Precinct 38, Candaba,
and Precincts 8 and 18, San Luis. And
the February 7, 1970 order
of the Pampanga court authorizing the correction of
returns from Precincts 9, 21, 20, 19, 16 and 15, San Luis, is the subject of a
motion for reconsideration by respondent Sanga.
We believe it to be the
duty of the Court of First Instance of Pampanga to
act on this pending motion promptly to the end that canvass may be completed
without delay.
The remedy as to the
remaining precincts (Precincts 3 and 4) of San Luis may not be
had in Comelec.
Because, following the course of action in the six precincts just
mentioned (Precincts 9, 21, 20, 19, 16 and 15), their
respective boards of inspectors should have petitioned the court for correction
of the returns.
2. We next address ourselves
to petitioner’s averment that Comelec should have
ordered a comparison between the Comelec copies and
the provincial treasurer’s copies of the returns from the 76 precincts of Apalit to prove that the returns were made by different
hands on different occasions.
There is not much to this point.
No need there is to require Comelec to make a
comparison between different copies if the purpose is to ascertain whether said
copies were prepared by different hands.
The canvassing board has found the provincial treasurer’s copies to be
authentic, clean and regular on their face.
Petitioner himself concedes that the Comelec
copies were tampered. No more logical
deduction there could be than that what should be used in the canvass are the
provincial treasurer’s untampered copies. We discern no error here on the part of Comelec.
3. We now take up the
question raised as to Precinct 6, San Simon.
There, it will be recalled that all copies of the returns bear a superimposition
as to the votes of respondent Sanga. The figures “75” were clearly
written over the figure “0”.
So it is, that instead of Sanga appearing to
have received no vote in said precinct, he is now credited with 7 5 votes in the
return therefrom.
The tally sheet retrieved from the ballot box is no help because it is
not now before us, aside from the fact that averment is made that it is
unsigned.
There is testimony before
Comelec that it was the chairman of the board of
inspectors who wrote in the 75 votes but who forgot to initial the change. It was because of this that Comelec ruled that such
change was not a tampering but simply a correction. Thus did Comelec
give Sanga the 75 votes.
This brings to mind the
case of Balindong vs. Commission
on Elections, L-29610, March 28, 1969, 27 SCRA 567, 584, 585.
The following pertinent
passages therein are significant:
“Even conceding that the alteration of ’13’ to ‘8’ was done by
the election inspectors, yet such act was unauthorized by, and contrary 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 the ‘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. x x x.
x x x
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, falsification spoliation of returns or making spurious returns must have to be
discouraged.”
Hewing to the line drawn
by Balindong, we cannot give our imprimatur to
Comelec’s view.
The correction having been made without the positive authority of the
other members of the board and such correction not having been initialed
by them, the original entry for Sanga may not be considered as altered. [7]
The foregoing thus
funnels us down to the conclusion that as to Precinct 6, San Simon, respondent Sanga should not be favored with 75 votes. The return for
him should remain as it originally was – zero.
4. Let us turn our attention to Precincts 35-A and 36, Apalit. Concededly, the name of petitioner Tiglao does not appear on the face of the returns for these
precincts. Comelec’s
view is that this could be a proper case for judicial correction, but that such
remedy is no longer availing because the members of the board of inspectors, in
the words of Comelec, “could not remember
whether petitioner received any votes” in said precincts.[8]
It would seem to us that
the fact that the boards of inspectors of said precincts forgot to write the
name of candidate Tiglao on the returns makes the
same incomplete. It is our belief that
they have not done their duty under the law.
Section 150 of the Revised Election Code specifically states that
“[i]mmediately after
the count, the board of inspectors shall make, complete and sign a
written statement thereof in quadruplicate.”[9] Because of the incompleteness of the
returns, no complete canvass of the votes can be had. A precept that has by now taken roots is that
an incomplete canvass of votes is illegal and cannot be the basis of a subsequent
proclamation.[10]
The foregoing lead us to
the conclusion that under the broad powers of Comelec
which should be exercised with
the end in view of insuring free, orderly and honest elections,[11] Comelec should
have ordered the boards of inspectors of Precincts 35-A and 36, Apalit, to open the ballot boxes, count the votes for
petitioner Tiglao, if any, and make new returns. This procedure has been clearly outlined by
this Court in Mutuc vs. Commission
on Elections, supra, where we said that “Comelec should direct the opening of the ballot box x x x for the purpose of retrieving
the copy of the election return deposited therein so that it may be used in
canvassing anew the votes cast, x x x and, should it be found that the ballot box copy is likewise
blank or incomplete, the Commission should order a count of the ballots, giving
notice, for this purpose, to all the candidates.”[12]
For the reasons given,
the petition for certiorari is hereby granted; the temporary restraining order
issued by this Court is hereby superseded; the resolution of respondent
Commission on Elections of January 26, 1970 ordering the proclamation of
“the presumptive winner for Member of the House of Representatives for the
2nd District of Pampanga” is hereby set aside;
the proclamation of the winning candidate shall be held in abeyance until after
the questions affecting the same as hereinabove discussed, pending in the Pampanga court, are determined with finality; and
respondent Commission on Elections is hereby directed to credit no vote for respondent
Cornelio Sanga in Precinct 6, San Simon, and to order
the boards of inspectors of Precincts 35-A and 36, Apalit,
to open, in the presence of all parties concerned, the ballot boxes for said
precincts, count the votes therein, and make new returns therefor.
No costs allowed.
SO ORDERED.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Ruiz Castro, Fernando, Teehankee,
Barredo, and Villamor, JJ., concur.
[1]
Case No. RR-695.
[2]
Pacis vs. Commission on Elections, L-29026, September 28, 1968, 25 SCRA 377,
390-391.
[3]
“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.”
[4]
The petition for judicial correction as to Precinct 18 prayed that Tiglao’s votes be corrected to read “eighty
(80).”
[5]
Election Case 3644. See Rollo, p. 300.
[6]
Rollo, p. 318. Precincts 35 -A and 36 are
included in the present petition before this Court.
[7]
See: Section 154, Revised Election Code, supra.
[8]
Resolution of January 21, 1970.
[9]
Emphasis supplied
[10]
Mutuc vs. Commission on Elections, L-28517, February 21, 1968, 22 SCRA 662, 666, citing
cases.
[11]
Section 2, Article X of the Constitution.
[12]
At p. 669.