G.R. No. L-28517. February 21, 1968
AMELITO R. MUTUC, GINES SORIANO WITH TV SCREEN NAME NESTOR DE VILLA, JOSE ALARILLA, TOMAS A. BALUYUT, OSCAR CALVENTO, RAFAEL GAITE, MICHAEL JOSEPH, AMADO DE VERA, JR. AND FILOME…
CASTRO, J.:
The petitioners were the candidates of the Nacionalista
Party for the offices of mayor, vice mayor and councilors in the municipality
of Makati, Rizal in the
general elections held on November 14, 1967.
The private respondents were the rival candidates of the Liberal Party.
Originally brought here as an appeal from two resolutions of the
Commission on Elections (Comelec) this case, in our
resolution of January 17, 1968, was considered, alternatively, as a special civil
action for certiorari. In
essence, it poses the novel question of whether the Comelec
has the power to order a canvass of the returns, disregarding the return from
one precinct which is blank or incomplete in the sense that it does not have
any entry of the votes cast for any candidate, upon its finding that the votes
from that precinct are not likely to alter the results of the election.
In counting the votes from the various precincts in Makati, the municipal board of canvassers was confronted
with an election return which, while listing the names of the candidates,
contained no entry at all of the votes cast for them. This was the return from precinct 124. A recourse to the provincial treasurer’s copy
of the same return yielded no result as it was likewise blank or
incomplete. So was the Comelec’s copy, except that this showed the total number
(263, according to the parties) of the votes cast in the precinct. As a result, counting had to be stopped.
On November 20, the board of canvassers filed a petition with
the Court of First Instance of Rizal, alleging that
because of discrepancies in the returns from certain precincts in Makati, among them precinct 124, the board could not
proclaim the winning candidates, and, for this reason, praying for the opening
of the ballot boxes in the precincts in question.
The board did not, however, press its petition. Instead, it asked the Comelec
on November 24 to be allowed to proceed with the proclamation of the winning
candidates, disregarding for this purpose the return from precinct 124, on the
claim that as the Comelec’s copy of the return showed
that there was a total of only 263 votes cast in that precinct, the results of
the election would not materially be changed by their inclusion.
The Comelec granted the request on the
same day and set the proclamation of the winners for the following day,
November 25. Accordingly, the board of
canvassers reconvened and proclaimed the respondents elected to the various
elective offices in Makati on the basis of the
canvass it had so far made, minus the return from precinct 124. It subsequently withdrew the petition it had
previously filed in court for the opening of the ballot boxes.
The petitioners asked the Comelec to
reconsider its resolution of November 24 and to annul the proclamation of the
respondents, but their motion was denied in another resolution dated December
22.
Hence the present petition.
It is now settled doctrine that an incomplete canvass of votes is
illegal and cannot be the basis of a subsequent proclamation.[1]
Indeed, it is the ministerial duty of a municipal canvassing body to count the
votes cast “in the same manner as hereinbefore provided for the provincial
board [of canvassers],”[2]
which means to say to count all the votes cast. Thus, section 160 of the Election Code
enjoins provincial boards of canvassers as follows:
“As soon as all the statements are before it
but not later than fifteen days next following the date of the election, the
provincial board of canvassers shall proceed to make a canvass of all the
votes in the province for national, provincial and city candidates, and
upon the completion of the canvass, shall make as the case may be, separate
statements of all the votes received by each candidate . .
.”[3]
A municipal board of canvassers must therefore count all
the votes cast in the election and, for this purpose, must consider all
returns presented to it by the municipal treasurer. If material defects there are in the form of
the returns, it must send them back to the corresponding boards of inspectors
for correction.[4]
If certain precincts have not sent in their returns, the board must send for
them, and the fiscal should forthwith institute criminal proceedings against
those who may be criminally responsible for the delay.[5]
If there is a discrepancy between two authentic copies of an election return
and the difference affects the result of the election, the board may ask the
proper court of first instance to order a recount of the ballots.[6]
All these serve to underscore the need to count all the
votes cast in an election. Only when the
returns are palpably irregular or obviously manufactured may they be rejected,[7]
but even then the board must exercise “extreme caution.”[8]
And where a return is falsified, the board may apply to the Comelec
for authority to use another copy which is genuine and authentic.[9]
Why must all the votes be counted when there is a need to finish the canvass on
time so that proclamation can be made before the beginning of the term of
office? Because to disregard returns is
in effect to disfranchise the voters.[10]
The Comelec was, under the
circumstances, bereft of power to order the board of canvassers of Makati to disregard the return
from precinct 124, even if it noted from its copy (which was likewise blank or
incomplete) that the number of votes cast in the precinct (263) was too small
to be of any significance to any candidate.
This, because the Comelec has no power to
decide questions involving the right to vote,[11]
as to disregard a return is in effect to deny the voters their votes.
As it is, the Comelec’s judgment that
the results of the election in Makati would not be
materially changed by the inclusion of the votes in precinct 124 is seriously
disputed by the petitioners, and indeed it is admitted by the respondents that
between the respondent Cesar Alzona, who garnered
18,190 votes to place eighth among the councilors, and the petitioner Michael
Joseph, who polled 17,969 to land on the ninth spot, there is a difference of
only 221 votes. Conceivably, the 263
votes in precinct 124 could upset the balance.
What the Comelec should have done is to
take the logically obvious and simple step of ordering the opening of the
ballot box to find out if the copy of the return deposited therein was properly
accomplished and, if it was, to order that it be used the canvassing of the
votes. This it had the power to do in
the fulfillment of its constitutional duty of insuring “free, orderly, and
honest elections.” And this it was unimpeded and had ample time to do, considering
that from November 24 when it ordered the proclamation, there were still 37
days to go to the statutory date of assumption of office by the elected
candidates (January 1).
As this Court said in Cauton v. Commission on Elections:[12]
“If it is shown that the copies in the
hands of the Commission on Elections and of the municipal treasurer are
similarly tampered [with] as the copies in the hands of the provincial
treasurer, then it becomes evident that all the three copies of the election
returns outside the ballot box do not constitute a reliable basis for a
canvass. The only copies left to be
checked . . . are the ones inside the ballot boxes. Certainly, the Commission on Elections, in
the exercise of its power to administer and enforce the laws relative to the
conduct of elections may order the opening of the ballot boxes to ascertain
whether the copy inside each ballot box is also tampered [with] like the three
copies outside the ballot box, corresponding to each precinct.”
This is the reason why in two other cases[13]
we upheld the power of the Comelec to direct
canvassing boards to use returns other than those specified by law if the
latter are found to have been falsified.
It is, however, contended that this Court lacks jurisdiction over
this case because the respondents have been proclaimed and have subsequently
assumed office, and that as a matter of fact some of the petitioners, more
specifically the petitioner Michael Joseph, have pending election protests in
the Court of First Instance of Rizal against some of
the respondents. It is indeed true that
after proclamation the usual remedy of any party aggrieved in an election is to
be found in an election test. But that is
so only on the assumption that there has been a valid proclamation. Where as in the case at bar the proclamation
itself is illegal, the assumption of office cannot in any way affect the basic
issues.[14]
In view of the conclusion we have thus reached, the Comelec should direct the opening of the ballot box
corresponding to precinct 124 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 for the local officials of Makati, 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. This is
the procedure that best recommends itself, what with the lack of special
procedure for dealing with a situation such as this. Judicial recount of the ballots under section
163 of the Code[15]
cannot be the remedy because there is no discrepancy between one authentic copy
and another authentic copy of the same return.
As we have earlier stated, the copies of the election return in this
case contain no entries as to the number of votes received by each
candidate. So there really is no
discrepancy, but only a failure to accomplish the form of the return properly. Indeed what has been submitted is no return
at all.
In deciding this case in the way we now do, we are by no means to
be understood as formulating a rule to control future cases which, although
factually and substantially similar to the present case, may require an
altogether different qualitative approach.
And we recognize that situations may – and do – arise where it becomes
advisable and wholly justified not to await all returns before proceeding with
the proclamation of the winning candidates.
The solution we have here adopted has been impelled by, and is
predicated solely upon, the peculiar and unusual circumstances here obtaining,
relative to which the Comelec acted with inordinate
haste.
ACCORDINGLY, the resolutions of the Commission on Elections
of November 24 and December 22, 1967
are set aside, and the proclamation of all the private respondents made on November 25, 1967 is annulled. The Commission on Elections is hereby
directed (1) to order the board of inspectors of precinct 124 of Makati, after due notice to all the candidates, to open the
ballot box corresponding to the said precinct for the purpose of retrieving therefrom the copy of the election return for use in the
new canvass to be held by the municipal board of canvassers, if said copy has
been properly accomplished, or, in the event that the said copy is blank or
incomplete, to count all the votes cast in the said precinct and then properly
accomplish a return based on such count; and (2) thereafter to order the
municipal, board of canvassers of Makati, without
delay and after due notice to all the candidates, to hold a new canvass of all
the votes cast in that municipality, and to proclaim the winning candidates in
accordance with the results thereof. No
pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
and Angeles, JJ., concur.
Fernando, J., concurs in a
separate opinion.
[1] See,
e.g., Demafiles v. Commission on Elections, L-28396, Dec. 29, 1967; Abes v.
Commission on Elections, L-28348, Dec.
15, 1967; Abendante v. Relato, 94 Phil. 8 (1953).
[2]
Rev. Election Code, sec. 168.
[3]
Emphasis supplied.
[4]
Rev, Election Code, sec. 162.
[5] Id.,
sec. 161.
[6] Id.
secs. 163 and 168.
[7] E.g.,
Lagumbay v. Commission on Election, L-25444,
Jan. 31, 1966, 16 S. Ct. Rep. Ann. 175, Nacionalista
Party v. Commission on Elections, 85 Phil., 149 (1949).
[8]
Estrada v. Navarro, L-28340 & L-28374, Dec 29, 1967.
[9] Ong v. Commission on Elections, L-28415, Jan. 29, 1968; Espino
v. Zaldivar, L-22325, Dec. 11, 1967.
[10]
Estrada v. Navarro, supra, note 8.
[11] Nacionalista Party v. Commission on Elections, supra,
note 7.
[12]
L-25467, April 27, 1967, 19
S. Ct. Rep. Ann. 911, 919, 1967B PHILD 253-254.
[13] Supra,
note 9.
[14] Cf.
Demafiles v. Commission on Elections, supra,
note 1.
[15] The
power to order a recount of the ballots under section 163 is lodged in the
proper court of first instance.
6 pt
6 pt
0
3
CONCURRING OPINION
FERNANDO, J.:
While agreeing fully as I do with the conclusion reached,
expounded with clarity and vigor in the opinion of Justice Castro, I feel that
there are implications of weight and of significance that call for the
expression of my views. Hence this concurring
opinion.
Less than a month ago, in Reyes v. Reyes,[1]
Acain v. Board of Canvassers,[2]
was not only cited with approval but was referred to as speaking “with
undiminished authority.” It was the Acain doctrine that from the filing of
a petition for quo warranto or an election protest, the proper court of first
instance acquires exclusive authority to inquire into and pass upon the
validity of a proclamation made by the municipal board of canvassers
concerned. That would therefore
preclude the Commission on Elections from acting further on the matter.
The above doctrine seems to be qualified by this excerpt from the
opinion of Justice Castro: “It is
indeed true that after proclamation the usual remedy of any party aggrieved in
an election is to be found in an election contest. But that is so only on the assumption that there has been a valid
proclamation. Where as in the case at
bar the proclamation itself is illegal, the assumption of office cannot in any
way affect the basic issues.”
It is my understanding then that if it be apparent on the face of
the pleadings before this Court that the proclamation was illegal, the
Commission could still act, notwithstanding the filing of an election protest
or a quo warranto proceeding in the meanwhile. To that extent, the Acain doctrine has been modified.
To my mind, there has been, to paraphrase Cardozo, no seismic
innovation, this particular mansion of the law stands, its symmetry not marred,
its features far from being rendered unrecognizable, still harmonious.
For it could be said with reason that a patently illegal
proclamation may be looked upon as devoid of any legal force or effect and
therefore considered as not having taken place at all. In which case, the constitutional duty cast
on the Commission on Elections to have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections leaves it no
alternative but to require that the proper canvass be made, preparatory to a
valid proclamation.
Even if realistically viewed, the law on this point is other than
what it was before and the Acain ruling no longer speaks with undiminished
authority, still the result reached in this case is unavoidable, if the
constitutional intent of insuring free, orderly, and honest elections were to
be realized, considering the circumstances disclosed by this litigation. Moreover, it affords more leeway for this
Tribunal in the exercise of its appellate jurisdiction over the actuations of
the respondent Commission, if depending on the facts of each case, it could
retain full and ample discretion to determine when it shall consider a matter
still proper for the cognizance of the Commission, notwithstanding the filing
of an election protest or a quo warranto proceeding in the meanwhile. On principle, there can be no valid
objection to such an amplitude of authority assumed by this Court for only thus
could it assure full adherence to the constitutional intent that the right to
vote for everybody becomes truly meaningful.
One other point. There
are those who may cavil at the absence of any specific statutory provision
which spells out what has been ordained by this Court today. They may in mock dismay cry out against the
evils of judicial legislation. By way
of answer, was it not Holmes, who pointed out that judges “do and must
legislate, [only] they can do so * * * interstially; they are confined from
molar to molecular motions.”[3]
They can fill in the gaps, clear up the ambiguities, and make statutory rules
truly responsive to the objective sought to be attained. For thereby there is not merely submission
to the dictates of justice but fealty to the overriding concern that prompted
the enactment of the statute.
As was so aptly expressed: “To follow the dictates of justice, when in harmony with the
law, must be a pleasure, but to follow the rules of law, in their true spirit,
to whatever consequences they may lead is a duty.[4]
[1]
L-28476, Jan. 31, 1968.
[2]
L-16445, May 23, 1960.
[3]
Southern Pacific Co. v. Jensen, 244 US 205, 221 (1917).
[4]
Duncan v. Mazette, 25 Tex 245, 253 (1860).