PET Case No. 003. January 18, 2008
LOREN B. LEGARDA, Protestant, vs. NOLI L. DE CASTRO, Protestee.
QUISUMBING, J.:
protestee Noli L. de Castro the duly elected Vice-President of the
Republic of the Philippines. The official count of the votes cast for
Vice-President in the May 10, 2004 elections showed that the protestee
obtained the highest number of votes, garnering 15,100,431 votes as
against the 14,218,709 votes garnered by the protestant Loren B.
Legarda, who placed second, in a field consisting of four candidates
for Vice-President.
On July 23, 2004, the protestant filed this protest with this Tribunal
praying for the annulment of the protestee’s proclamation as the duly
elected Vice-President of the Republic of the Philippines.[2]
The protest has two main parts. The First Aspect
originally covered “all the erroneous, if not manipulated, and
falsified results as reflected in the final canvass documents” for
9,007 precincts in six provinces, one city and five municipalities.[3]
Protestant avers that the correct results appearing in the election
returns were not properly transferred and reflected in the subsequent
election documents and ultimately, in the final canvass of documents
used as basis for protestee’s proclamation. Protestant seeks the
recomputation, recanvass and retabulation of the election returns to
determine the true result.
The Second Aspect required revision of ballots in 124,404 precincts specified in the protest.[4]
The Tribunal confirmed its jurisdiction over the protest and denied the
motion of protestee for its outright dismissal. Protestee filed a
motion for reconsideration arguing in the main that the Tribunal erred
in ruling that the protest alleged a cause of action sufficient to
contest protestee’s victory in the May 2004 elections.[5]
On March 31, 2005, the Tribunal ruled that:
On the matter of sufficiency of the protest, protestee
failed to adduce new substantial arguments to reverse our ruling. We
hold that while Peña v. House of Representatives Electoral Tribunal
on requisites of sufficiency of election protest is still good law, it
is inapplicable in this case. We dismissed the petition in Peña because it failed to specify the contested precincts. In the instant protest, protestant enumerated all the provinces, municipalities and cities where she questions all the results in all the precincts therein.
The protest here is sufficient in form and substantively, serious
enough on its face to pose a challenge to protestee’s title to his
office. In our view, the instant protest consists of alleged ultimate
facts, not mere conclusions of law, that need to be proven in due time.Considering that we find the protest sufficient in form and substance, we must again stress that nothing as yet has been proved as to the veracity of the allegations.
The protest is only sufficient for the Tribunal to proceed and give the
protestant the opportunity to prove her case pursuant to Rule 61 of the
PET Rules. Although said rule only pertains to revision of ballots,
nothing herein prevents the Tribunal from allowing or including the
correction of manifest errors, pursuant to the Tribunal’s rule-making
power under Section 4, Article VII of the Constitution.On a related matter, the protestant in her reiterating motion
prays for ocular inspection and inventory-taking of ballot boxes, and
appointment of watchers. However, the Tribunal has already ordered the
protection and safeguarding of the subject ballot boxes; and it has
issued also the appropriate directives to officials concerned. At this
point, we find no showing of an imperative need for the relief prayed
for, since protective and safeguard measures are already being
undertaken by the custodians of the subject ballot boxes.WHEREFORE, protestee’s motion for reconsideration is hereby DENIED WITH FINALITY
for lack of merit. Protestant’s reiterating motion for ocular
inspection and inventory-taking with very urgent prayer for the
appointment of watchers is also DENIED for lack of showing as to its actual necessity.Further, the protestant LOREN B. LEGARDA is ORDERED
to specify, within ten (10) days from notice, the three (3) provinces
best exemplifying the manifest errors alleged in the first part of her
protest, and three (3) provinces best exemplifying the frauds and
irregularities alleged in the second part of her protest, for the
purpose herein elucidated.Lastly, the Tribunal hereby ORDERS the Commission on Elections to SUBMIT, within 30 days hereof, the official project of precincts of the May 2004 Elections.
SO ORDERED.[6]
On April 11, 2005, protestant identified three (3) provinces as pilot areas best exemplifying her grounds for the First Aspect
of the protest. She chose the provinces of Lanao del Sur, Lanao del
Norte, and Surigao del Sur with the following number of protested
precincts: 1,607, 2,346 and 350, respectively, or a total of 4,303 out
of the original 9,007 precincts.[7]
On June 21, 2005, the Tribunal ascertained[8] the number of ballot boxes subject of the protest, to wit:
The Tribunal Resolved to NOTE the Letter dated 30 May 2005
filed by Executive Director Pio Jose S. Joson, COMELEC, in compliance
with the Letter dated 14 April 2005 of Atty. Luzviminda D. Puno, Acting
Clerk of the Tribunal, informing the Tribunal that one thousand four
hundred fifty-four (1,454) ballot boxes are involved in the precincts
of the province of Surigao del Sur which the protestant has identified
to the Tribunal as best exemplifying the irregularities in connection
with the 10 May 2004 National and Local Elections.Accordingly, without prejudice to its recomputation, the number of
ballot boxes involved in the precincts of the provinces which the
protestant has identified to the Tribunal as best exemplifying the
irregularities in connection with the said elections are as follows:
| Lanao del Sur | 1,568 | |
| Lanao del Norte | 2,317 | |
| Surigao del Sur | 1,454 | |
| Cebu City | 10,127 | |
| Pampanga | 5,458 | |
| Maguindanao | 1,755 | |
|
Total
|
22,679 ballot boxes involved in the precincts |
|
| x P500.00 | ||
|
P11,339,500.00
|
||
On November 2, 2005 protestant moved to withdraw and abandon almost all pilot precincts in the First Aspect except those in the province of Lanao del Sur.[9]
On November 22, 2005, the Tribunal granted the said motion withdrawing
and abandoning the protest involving the manifest errors in the
municipalities of Lanao del Norte and Surigao del Sur.[10]
Thereafter, proceedings duly ensued concerning both the First and Second Aspects. Former Associate Justice Bernardo P. Pardo as Hearing Commissioner[11]
heard the presentation of evidence of both parties for the First
Aspect. Subpoenas were issued to the witnesses of the protestant, e.g.
the President/General Manager of Ernest Printing Corporation[12] and then Commission on Elections Chairman Benjamin Abalos.[13]
On August 28, 2006, a preliminary conference was called by Hearing
Commissioner Bernardo P. Pardo to schedule the presentation of
evidence. The latter then ordered as follows:
Pursuant to the Resolution of the Tribunal dated 22 August
2006, setting the preliminary conference of the parties with the
Hearing Commissioner today, the designated Hearing Commissioner called
the preliminary conference in order to consider the order of hearing
and presentation of evidence of the parties according to the procedure
prescribed in the Resolution of the Tribunal of 1 August 2006, under
paragraph B (1 and 2).The following are the appearances
1) Protestant Loren B. Legarda, in person;
2) Atty. Sixto S. Brillantes, Jr. and Atty. Jesus P. Casila, for the protestant;
3) Protestee Noli L. de Castro did not appear;
4) Atty. Armando M. Marcelo and Atty. Carlo Vistan, for the protestee.
Atty. Brillantes manifested that the protestant is ready to adduce
testimonial and documentary evidence on a date to be scheduled and
agreed upon by the parties; they have about seven witnesses to testify
on the first aspect as indicated in the Tribunal’s Resolution of 1
August 2006. He suggested 6 September 2006 as the initial date of the
hearing. Atty. Marcelo stated that he was leaving for abroad on 6
September 2006 for one month and suggested a hearing after his return
in October 2006. At any rate, protestee has a pending motion for
reconsideration of the Tribunal’s Resolution of 22 August 2006
designating a retired Justice of the Supreme Court as Hearing
Commissioner. They wanted an incumbent Justice of the Supreme Court or
an official of the Tribunal who is a member of the Bar to be the
designated Hearing Commissioner.The undersigned Hearing Commissioner suggested that the initial hearing
be held on 4 September 2006, at 10:00 a.m., when protestee’s counsel
will still be in town, without prejudice to the resolution of the
Tribunal on his motion for reconsideration.The undersigned Hearing Commissioner suggested to protestant’s counsel
to submit by this afternoon the list of the names of the proposed
witnesses and documents to be produced so that the proper process may
be issued to them.The undersigned Hearing Commissioner set the initial hearing
tentatively on Monday, 4 September 2006, at 10:00 a.m., at the same
venue, subject to the Tribunal’s ruling on protestee’s motion for
reconsideration of the person of the Hearing Commissioner, and
protestant to submit by this afternoon the list of witnesses and
documents to be produced at the hearing.IT IS SO ORDERED.[14]
Several hearings on the First Aspect
were held wherein the protestant adduced evidence and the protestee
interposed his continuing objection to such in the form of motions and
comments. Months of continuous trial took place until the Hearing
Commissioner made his final report of the proceedings for detailed
consideration by the Tribunal.
On January 31, 2006, while the case was sub judice,
the Tribunal ordered both parties to refrain from sensationalizing the
case in the media. Its extended resolution on the matter reads as
follows:
On December 12, 2005, the re-tabulation of election
returns (ERs) from the ten (10) protested municipalities of Lanao del
Sur commenced. According to the report submitted by the Acting Clerk of
the Tribunal, Atty. Maria Luisa D. Villarama, the correction team was
able to re-tabulate only the ERs from four (4) of the ten (10)
protested municipalities of Lanao del Sur, namely, Balindong, Masiu,
Mulondo and Taraka. The ERs of the other six (6) protested
municipalities were not found inside the ballot boxes collected from
the House of Representatives, but found were the ERs from
municipalities not subject of the protest.Therefore, acting on the aforementioned report of the Acting Clerk, the Tribunal resolves to REQUIRE Hon.
Roberto Nazareno, Secretary General of the House of Representatives and
Atty. Artemio Adasa, Jr., Deputy Secretary General for Operation, of
the House of Representatives, within a non-extendible period of five
(5) days from notice, to(a) DELIVER to the Tribunal the election returns
and other election documents/paraphernalia used in the May 2004
National/Local elections for the remaining six (6) protested
municipalities of Lanao del Sur, namely (1) Bacolod-Kalawi; (2)
Ganassi; (3) Kapai; (4) Sultan Gumander; (5) Tamparan; and (6) Wao;(b) EXPLAIN
why the election returns and other election documents and paraphernalia
which were turned over to the PET Retrieval Team are incomplete when
compared to the COMELEC’s total number of clustered precincts for Lanao
del Sur; and(c) SUBMIT to the Tribunal the complete
list of all the election returns, Provincial/District Certificates of
Canvass and Statements of Votes and other election documents and
paraphernalia used in the May 2004 National and Local Elections for the
province of Lanao del Sur which were in its official custody.In the resolution dated December 6, 2005, the Tribunal granted
protestant’s motion to suspend the remittance of additional cash
deposit amounting to P3,882,000 as required in the resolution of
November 22, 2005. Protestant also manifested in said motion that she
will make the required cash deposit sometime in the year 2006. Thus,
the Tribunal resolves to REQUIRE
protestant to comply with the resolution of November 22, 2005 requiring
her to make additional cash deposit of P3,882,000 within ten (10) days.On another matter, the Presidential Electoral Tribunal notes the following news reports:
(1) In an article entitled “Recount shows fraud, says
Legarda” appearing in the December 13, 2005 issue of The Manila Times,
protestant Legarda said that the election returns from Congress had
been tampered after initial retabulation of votes by the Tribunal
showed that the lead of protestee De Castro over her has widened. She
added that this discovery confirmed her claim of massive poll fraud in
favor of protestee in the 2004 election.(2) In an article entitled “Intel feelers offer proof of poll fraud to
Loren” published in the December 13, 2005 issue of The Daily Tribune,
sources from protestant’s legal team said that feelers from the
military’s intelligence service arm have reached their camp offering
videotapes of cheating in the 2004 elections for a price they cannot
afford.(3) In another article entitled “Election returns altered inside
Congress—Loren” published in the December 15, 2005 issue of Philippine
Daily Inquirer, protestant claimed that the altering of election
returns from Lanao del Sur occurred right inside Congress as borne out
by the “spurious” returns being retabulated by the Tribunal. She said
the crime could have been perpetrated by the operatives of protestee.(4) In a news article entitled “Cebu recount shows Noli, Loren votes
tally with NBC” appearing in the January 6, 2006 issue of The Manila
Times, Atty. Romulo Macalintal, counsel of protestee, stated that “the
initial recount in Lapu-lapu showed that there was no tampering of the
ballot boxes in the city,” and further noted that the four (4) out of
the 40 ballot boxes “contained tampered or spurious ballots, but these
are not connected to the protest of Senator Legarda but on local
protests.”(5) In an article entitled “Noli condemns tampering of ballots”
appearing in the January 6, 2006 issue of Manila Standard Today, Atty.
Armando Marcelo said that their revisors at the PET discovered that
several ballots of Legarda had been substituted with fake and spurious
ballots. Atty. Macalintal added that “the substitution of ballots was
so clear, that the security markings of the substitute ballots were not
reflected or visible or that the ultraviolet markings of the COMELEC
seal do not appear or are not present”, and that “these ultraviolet
markings are readily visible in a genuine ballot once lighted with an
ultraviolet light.”(6) In an article entitled “No cheating in Cebu, Noli’s lawyer
insists,” published in the January 19, 2006 issue of Philippine Daily
Inquirer, Atty. Macalintal said that “the results of the actual count
of the ballots for Legarda and De Castro from the cities of Mandaue and
Lapu-lapu tallied with the results as reflected in the election returns
and tally boards. There was no sign of any tampering of the results of
the ballot count as well as the votes reflected on the returns and
tally boards.” He also said that protestant Legarda is already estopped
from questioning the results of the election in these cities since she
failed to object to the returns.(7) In an article entitled “GMA-Noli poll win in Cebu affirmed,”
published in the January 19, 2006 issue of The Philippine Star, it was
reported that Atty. Macalintal, in his speech before the Rotary Club of
Pasay City, denied protestant’s claim that 90 percent of the ballots
from two major cities of the province were found to be spurious by the
Tribunal. He added that “if a candidate would allow himself to be
cheated by 90 percent, then he or she has no business to be in
politics.”(8) In an article entitled “Why Noli is unacceptable” appearing in the
January 20, 2006 issue of The Daily Tribune, protestant “told the media
that the real ballots from Mandaue City and Lapu-lapu City were
‘clearly substituted with fakes so that they would correspond with the
similarly spurious results reflected in the election returns (ERs).’”Surely, the parties do not harbor the idea that the re-tabulation of
election returns and revision of ballots is the end of the election
protest. They are merely the first phase of the process and must still
pass closer scrutiny by the Tribunal.The great public interest at stake behooves the Tribunal to exercise
its power and render judgment free from public pressure and
uninterrupted by the parties’ penchant for media mileage. Therefore, in
view of the foregoing reports where press statements of both parties
appeared as an attempt to influence the proceedings, convince the
public of their version of facts, and create bias, prejudice and
sympathies, the Tribunal resolves to WARN both parties and counsels from making public comments on all matters that are sub judice.Finally, acting on the pleadings filed in this electoral protest case, the Tribunal further Resolves to
(a) NOTE the Comment on Protestee’s Motion to Allow Revisors to Examine All Ballots
dated January 24, 2006, filed by counsel for protestant Legarda, in
compliance with the resolution of January 17, 2006, informing the
Tribunal that she interposes no objection and opposition to the motion
and GRANT the aforesaid motion of the protestee;(b) DIRECT all Head Revisors to ALLOW the parties to examine the ballots within a reasonable time;
(c) NOTE the Manifestation
dated January 24, 2006, filed by counsel for protestant relative to the
Motion to Intervene filed by Intervenor/Movant Amytis D. Batao,
informing the Tribunal that she is not waiving the revision of the
thirty-five (35) ballot boxes subject of the electoral protest for the
mayoralty post of Carmen, Cebu, and proposing that priority be given
and extended to the same so that upon completion of the revision by the
Tribunal, said ballot boxes can be returned to the Regional Trial Court
of Mandaue City, at the earliest time possible; and(d) DENY the above Motion to Intervene
of Intervenor/Movant Amytis D. Batao, with regard to the return of the
ballot boxes considering that the Tribunal has priority in their
possession and examination.” Ynares Santiago, J., no part.[15]
Revision of ballots was also conducted for the Second Aspect
in the Tribunal’s premises by the duly designated officials and trained
personnel with both parties duly represented. After ten months of
continuous work by twenty-four revision teams, under the supervision of
Atty. Orlando Cariño as the designated Consultant, the revision of the
ballots from the pilot province of Cebu was completed. Revision also
started for the second pilot province of Pampanga, but was suspended
after the Tribunal granted the protestee’s Motion for Partial
Determination of Election Protest Based on the Results of the Revision
of Ballots of the Province of Cebu and the Recanvass of Election
Returns from Lanao Del Sur and to Hold in Abeyance Revision of Ballots
from Pampanga.[16]
On May 3, 2007, the protestant was required to deposit P3,914,500 for
expenses necessary for the continuation of the revision of ballots.[17]
But protestant failed to pay on the due date. Thus, protestee moved to
dismiss the protest. The Tribunal extended the period for protestant to
make the necessary deposit. Even with this extension, she still failed
to pay. Thus, in a Resolution dated June 5, 2007, the Tribunal
partially granted the protestee’s motion to dismiss pursuant to Rule 33[18] of PET rules, and ordered the dismissal of the Second Aspect of the protest as follows:
PET Case No. 003 (Loren B. Legarda vs. Noli L. de Castro).
– Acting on the protestee’s Motion to Dismiss dated May 9, 2007, the
Tribunal Resolved to(a) PARTIALLY GRANT the aforesaid motion pursuant to Rule 33 of the 2005 PET Rules; and
(b) DISMISS the second aspect of the protest (revision of ballots), for protestant’s failure to make the required deposit.
The Tribunal further Resolved to DENY
the request of Atty. Eric C. Reginaldo in his letter dated May 29, 2007
that he be furnished with a copy of the petition in this case for case
study, as he is neither a party nor a counsel of any party in this
protest.[19]
On June 13, 2007, Hearing Commissioner Bernardo P. Pardo submitted to the Tribunal a Report of the Proceedings of the First Aspect.[20]
On June 18 2007, protestant filed an Urgent Motion to Resolve First Aspect
of the Protest, stating that she formally moved for the immediate
resolution of the submitted portion of the First Aspect of the protest.[21] Protestee did not interpose any objection to this motion.
On July 10, 2007, the Tribunal resolved to note the report of the
Hearing Commissioner. In response to the motion filed by the
protestant, the Tribunal required the parties to submit their
respective memoranda within twenty days from notice, pursuant to Rule 61[22] of the PET Rules.[23]
On August 2, 2007, by counsel protestant submitted her memorandum.[24] On August 16, 2007, also by counsel protestee filed his memorandum.[25]
On October 1, 2007, Hearing Commissioner Bernardo P. Pardo submitted his Final Report of the Proceedings on the First Aspect.
After a thorough analysis of the parties’ memoranda and the results of
the proceedings on the protest, he recommended the dismissal of the First Aspect.[26]
For her part, protestant filed a memorandum stating that based on the
pieces of evidence she presented, both documentary and testimonial, she
has shown that electoral fraud or cheating was committed through the
so-called dagdag-bawas strategy
in the elections for President and Vice-President held last May 14,
2004. Protestant in particular submitted that electoral fraud was
perpetuated as follows:
- That the correct votes of the parties
were properly recorded and tabulated in the election returns (ERs),
wherein she garnered a higher number of votes over protestee De Castro;[27]- That when the ERs were canvassed at the municipal level, the
ER results were “wrongly and erroneously” transposed and transferred to
the Statement of Votes by Precinct (SOV-P), such that the protestee was
given a higher number of votes;[28]- That the inaccurate results shown in the SOV-P were totaled
and transferred to the Municipal Certificate of Canvass (MCOC), with
protestee prevailing over protestant;[29]- That the MCOC, with incorrect totals, was transmitted to the
Provincial Board of Canvassers, wherein the inaccurate MCOC totals were
transposed to the Statement of Votes by Municipalities (SOV-M);[30]- That the numbers reflected in the individual SOV-Ms were
totaled, and the sum for the whole province was indicated in the
Provincial Certificate of Canvass (PCOC);[31]- That the PCOCs, with the erroneously transposed totals
stemming from the incorrect SOV-Ps, were the ones canvassed by
Congress, acting as the National Board of Canvassers for the
presidential and vice-presidential positions;[32] and- That Congress, sitting as the National Board of Canvassers,
merely “noted” and denied protestant’s request to view the
precinct-source ERs, and proceeded to canvass the
“already-manipulated/dagdag-bawas” PCOCs, resulting in the flawed and
farcical victory of protestee De Castro.[33]
Protestant avers that fraud, by means of the anomalous election
practices, was sufficiently proven by using her sample-pilot precincts
in two municipalities in Lanao del Sur, particularly Balindong and
Taraka. She likewise alleges that the “dagdag-bawas”
scheme, which was perpetrated through the deliberate and erroneous
transposition of results from the authentic ERs to the SOV-Ps, was
further aggravated by an alleged cover-up operation to hide the same.
According to protestant, the Congress-retrieved copies of the ERs which
tally with the SOV-Ps, were fake and spurious; they were intended to
cover-up the electoral fraud committed. Protestant submits that the
correct voting results are those reflected in the COMELEC and NAMFREL’s
copies of the ERs, not those in the copies retrieved from Congress.
Protestant further claims that while she presented pieces of evidence,
both testimonial and documentary, in only two municipalities of Lanao
del Sur, i.e., Balindong and Taraka, to prove the electoral fraud
perpetrated through the dagdag-bawas strategy, she could have shown
that such fraudulent machination was replicated in several other
municipalities of Lanao del Sur and other provinces, such as Basilan,
Sulu, Tawi-Tawi, Maguindanao, Sultan Kudarat, and Lanao del Sur if she
had enough time.
Protestee, for his part, argues that the Congress-retrieved ERs are public documents as defined under Section 19 (a),[34] Rule 132 of the Rules of Court, and thus, they enjoy the presumption of regularity accorded thereto, and they are prima facie evidence of the facts stated therein. He avers that there is prima facie
presumption that the Congress-retrieved copies of the ERs are genuine,
authentic and duly executed. Protestee submits that protestant has
failed to rebut such presumption with clear and convincing evidence.
Protestee adds that a blank or unused ER form duly authenticated by the
COMELEC, with the correct and complete set of security features and
markings, should have been marked and offered as evidence, to serve as
basis for comparison with the various sets of ERs presented to prove
the genuiness of the security features and markings in the ER forms. On
this score, according to protestee, the protestant’s counsel has failed
in his task. At any rate, protestee points out that the witnesses
presented by protestant, i.e.,
COMELEC Chairman Benjamin S. Abalos and Mr. Robert Payongayong of the
Ernest Printing Corporation, testified that they were able to discern
security features and markings in the Congress-retrieved copies of the
ERs. Protestee also claims that when Mr. Payongayong testified about
the security features on the Congress’ copies, he was shown only a
sample set thereof, and was not able to examine all Congress’ copies
being contested. Protestee thus concludes that the Tribunal cannot rely
on the testimonies of the protestant’s witnesses debunking the
authenticity of the Congress-retrieved copies vis-à-vis the other sets of ER copies.
Protestee further contends that, assuming arguendo that the results reflected in the COMELEC, NAMFREL and MBOC’s[35] copies of the ERs are re-tabulated, in lieu
of the results in the Congress-retrieved copies, or even if all the
votes in the 497 precincts included in the pilot areas, as well as in
the remaining protested precincts in the First Aspect, are
counted in favor of protestant, said votes would be insufficient to
overcome the lead of the protestee totaling 881,722 votes. Hence, in
view of the failure of the protestant to make out her case for the First Aspect
of the protest, the same and ultimately the protest in its entirety,
must be dismissed without consideration of the other provinces
mentioned.
The Hearing Commissioner further recommended, following the precedent set in Defensor-Santiago v. Ramos,[36]
that the protest be dismissed for being moot and academic due to
abandonment and withdrawal resulting from protestant’s election and
assumption of office as senator. He also emphasized that assuming that
dagdag-bawas had indeed occurred and that the results in the COMELEC’s
ER copies indicated in Annex “A” were to be used for re-tabulation,
protestant would be entitled to an additional 4,912 votes for the
municipality of Taraka and 5,019 votes for Balindong, or a total of
9,931 votes, which is not adequate to surpass protestee’s lead of
881,722 votes over protestant.
On protestant’s charges of electoral fraud allegedly aggravated by a
cover-up operation that switched or exchanged the Congress’ ER copies
with spurious ones, the Hearing Commissioner stressed that the
Congress-retrieved ERs are public documents which enjoy the presumption
of regularity and are prima facie
evidence of the facts stated therein. He concluded that the protestant
failed to adequately and convincingly rebut the presumption. The
Hearing Commissioner also emphasized that protestant failed to
substantiate sufficiently her claim that the Congress-retrieved ERs are
spurious and were switched with the authentic copies during an alleged
break-in at the storage area of the House of Representatives as no
evidence was presented to prove such break-in. Hence, the alleged
discrepancies found in NAMFREL, MBOC and COMELEC’s copies of the ERs
are insufficient to exclude the Congress-retrieved ER copies from the
re-tabulation. The Hearing Commissioner also observed that in 11 out of
the 51 precincts in Balindong, Lanao del Sur, there are similar entries
in the Congress-retrieved ERs and in the COMELEC’s copies of the ERs,
where protestant garnered a higher number of votes over protestee,
while the entries in the respective SOV-Ms are different in that the
protestee received more votes, belying protestant’s assertion that the
Congress-retrieved ERs should all be disregarded since the results
therein differ from those in the COMELEC’s copies of ERs and that they
have been manipulated to favor protestee. Consequently, according to
the Hearing Commissioner’s report, protestant failed to make out her
case.
Thus, the Hearing Commissioner recommended that the protestant’s Motion to Resolve the First Aspect
of the Protest under consideration should be denied, and consequently,
the protest itself, be dismissed for lack of legal and factual basis,
as the pilot-tested revision of ballots or re-tabulation of the
certificates of canvass would not affect the winning margin of the
protestee in the final canvass of the returns, in addition to the
ground of abandonment or withdrawal by reason of her candidacy for,
election and assumption of office as Senator of the Philippines.[37]
After thorough deliberation and consideration of the issues in this
case, this Tribunal finds the abovestated recommendations of its
Hearing Commissioner well-taken, and adopts them for its own.
Further, we are also in agreement that the protestant, in assuming the
office of Senator and discharging her duties as such, which fact we can
take judicial notice of,[38]
has effectively abandoned or withdrawn her protest, or abandoned her
determination to protect and pursue the public interest involved in the
matter of who is the real choice of the electorate. The most relevant
precedent on this issue is Defensor-Santiago v. Ramos,[39] a decision rendered by this Tribunal, which held that:
The term of office of the Senators elected in the 8 May
1995 election is six years, the first three of which coincides with the
last three years of the term of the President elected in the 11 May
1992 synchronized elections. The latter would be Protestant Santiago’s
term if she would succeed in proving in the instant protest that she
was the true winner in the 1992 elections. In assuming the office of
Senator then, the Protestant has effectively abandoned or withdrawn
this protest, or at the very least, in the language of Moraleja,
abandoned her “determination to protect and pursue the public interest
involved in the matter of who is the real choice of the electorate.”
Such abandonment or withdrawal operates to render moot the instant
protest. Moreover, the dismissal of this protest would serve public
interest as it would dissipate the aura of uncertainty as to the
results of the 1992 presidential election, thereby enhancing the all-[too] crucial political stability of the nation during this period of national recovery.It must also be stressed that under the Rules of the Presidential
Electoral Tribunal, an election protest may be summarily dismissed,
regardless of the public policy and public interest implications
thereof, on the following grounds:(1) The petition is insufficient in form and substance;
(2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof;
(3) The filing fee is not paid within the periods provided for in these Rules;
(4) The cash deposit, or the first P100,000.00 thereof, is not paid within 10 days after the filing of the protest; and
(5) The petition or copies thereof and the annexes thereto filed with the Tribunal are not clearly legible.
Other
grounds for a motion to dismiss, e.g., those provided in the Rules of
Court which apply in a suppletory character, may likewise be pleaded as
affirmative defenses in the answer. After which, the Tribunal may, in
its discretion, hold a preliminary hearing on such grounds. In sum, if
an election protest may be dismissed on technical grounds, then it must
be, for a decidedly stronger reason, if it has become moot due to its
abandonment by the Protestant.[40]
In the case at bar, protestant’s tenure in the Senate coincides with
the term of the Vice-Presidency 2004-2010, that is the subject of her
protest. In Defensor-Santiago v. Ramos,
the protestant’s tenure in the Senate also coincided with the term of
the Presidency she was vying for. Like the protestant in the
aforementioned case, the protestant in the case at bar filed her
certificate of candidacy for the Senate, campaigned for the office,
assumed office after election, and discharged the duties and functions
of said office. Thus, we agree concerning the applicability of the Defensor-Santiago case as a precedent in the resolution of the present protest, though they differ in that Defensor-Santiago’s case involves the Presidency while Legarda’s protest concerns only the Vice-Presidency.
On the matter of the alleged spurious ER copies, we agree with the
protestee that the protestant had not adequately and convincingly
rebutted the presumption that as public documents, the
Congress-retrieved ER copies, used for the proclamation of the
protestee by the NBC, are authentic and duly executed in the regular
course of official business. The evidence adduced by protestee to show
that the supposed security features and markings in the
Congress-retrieved ERs and the COMELEC/NAMFREL’s copies are different,
did not categorically establish that the Congress-retrieved ERs are
fake and spurious. To overcome the presumption of regularity, there
must be evidence that is clear, convincing and more than merely
preponderant. Absent such convincing evidence, the presumption must be
upheld.[41]
In fact, the records show that even the witnesses presented by the
protestant testified that they were able to discern security features
and markings in the Congress-retrieved ERs. The records also show that
witnesses were not made to examine all Congress-retrieved ERs in making
observations relative to security features and markings, but only a
sample set thereof was utilized, resulting in grave insufficiency in
the evidence presented by protestant.
As to the alleged break-in in Congress, which allegedly facilitated the
switching of ERs, no conclusive evidence has been given. One of the
protestant’s own witnesses, Atty. Artemio Adasa, Deputy General for
Legislative Operations of the House of Representatives, categorically
denied that a break-in and a switching of ERs had occurred in Congress.[42]
At any rate, as pointed out by protestee, even assuming arguendo that
all the votes in the 497 precincts included in the pilot areas for the First Aspect
with approximately 99,400 votes are considered in favor of protestant,
still the protestant would not be able to overcome the lead of the
protestee. The margin in favor of protestee adds up to a total of
881,722 votes, and it would take much more than a hundred thousand
votes to overcome this lead. This is what the protestant had set out to
do in her protest before the Tribunal, but unfortunately she failed to
make out her case.[43] In
fact, Taraka and Balindong, the only two municipalities on which
protestant anchors her arguments for the First Aspect, would only yield
an additional 9,931 votes (4,912 votes for Taraka and 5,019 votes for
Balindong), a mere fraction of the lead of protestee over protestant.
To say that she could have shown that such fraudulent machination was
replicated in several other municipalities of Lanao del Sur and other
provinces, such as Basilan, Sulu, Tawi-Tawi, Maguindanao, Sultan
Kudarat and Lanao del Sur if she had enough time, is mere conjecture
and can not be considered convincing by this Tribunal. It is the
protestant herself who admits that she was able to adduce evidence only
in Taraka and Balindong, for lack of time. But this Tribunal has been
liberal in granting her plea for time extension. To say that the
protestant had shown enough evidence to prove that the whole or even
half (440,862)[44] of the
lead of the protestee over the protestant is spurious, would go against
the grain of the evidence on hand. One cannot say that half a million
votes were illegally obtained based on unclear evidence of cheating in
less than ten thousand. The protestant has been afforded ample
opportunity to adduce evidence in her behalf for the First Aspect of
the protest but the evidence presented is simply insufficient to
convince the Tribunal to render invalid all or even half of the 881,722
votes that protestee had over her in the last elections for
Vice-President.
WHEREFORE, the First Aspect of the protest is hereby DISMISSED
for lack of legal and factual basis, as the pilot-tested revision of
ballots or re-tabulation of the certificates of canvass would not
affect the winning margin of the protestee in the final canvass of the
returns, in addition to the ground of abandonment or withdrawal by
reason of protestant’s candidacy for, election to and assumption of the
office of Senator of the Philippines. The Second Aspect, having been already DISMISSED on June 5, 2007, pursuant to Rule 33 of this Tribunal, the entire Protest is now deemed DISMISSED and TERMINATED.
SO ORDERED.
Puno, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Nachura, Reyes, and Leonardo-De Castro, JJ., concur.
Ynares-Santiago, J., No part.
Carpio, J., I concur but on ground of abandonment alone.
Chico-Nazario, and Velasco, Jr., JJ., On leave.
[1] PET rollo, Vol. I, pp. 39-41.
[2] Id. at 3-36.
[3] Id. at 9-11.
[4] Id. at 11-13.
[5] Id. at 511.
[6] Id. at 514-516.
[7] Id. at 10; 527.
[8] Id. at 660.
[9] PET rollo, Vol. II, pp. 1007-1010.
[10] Id. at 1059-1061.
[11] Id. at 1753, August 1, 2006 PET Resolution.
x x x x
A. Hearing Commissioner–
- Designation.-The Tribunal may
delegate the reception of evidence to a Hearing Commissioner who may be
a Member of the Tribunal or an official of the Tribunal who is a member
of the Philippine Bar or a retired Justice of the Supreme Court who is
willing to accept the designation.x x x x
[12] PET rollo, Vol. III, pp. 2135-2140.
SUBPOENAE AD TESTIFICANDUM ET DUCES TECUM
TO: The President/General Manager
Ernest Printing Corporation
29 M.H. Del Pilar Street
Between 3rd and 4th Avenues, Grace Park
Caloocan CityGREETINGS:
You are hereby commanded:
(1) to appear in person before the Presidential Electoral Tribunal and
its duly designated Hearing Commissioner Ret. Justice Bernardo P.
Pardo, during the scheduled hearing/proceedings of the above-entitled
case on November 3, 2006, Friday, at ten o’clock in the morning at the
Division Session Hall, Ground Floor, New SC Building and then and there
to testify under oath on the following matters and/or subjects –“The DETAILS on the aspect and on the matter of the PRINTING of the
Comelec-contracted and ordered copies of the ELECTION RETURNS and other
election documents, if any, as prepared and printed by the Ernest
Printing Corporation, which printed documents were used in the May 10,
2004 elections, and in particular, on matters respecting the placing
and/or incorporating in the said election documents, of some or several
secret marks or any other security feature/s, if any including some
other details material and relevant to and/or related to or connected
with the AUTHORITY of Ernest Printing Corporation to undertake such
actual printing of the said election returns and other election
documents.”(2) to bring with you the following –
“Any and all documents such as CONTRACTS, AGREEMENTS and/or AWARDS
between Ernest Printing Corp. and COMELEC that would show and prove the
scope of the AUTHORITY of Ernest Printing Corporation to undertake the
PRINTING of the election returns and other election documents, as
extended or granted unto it by the Commission on Elections; as well as
any and all other documents on any pertinent matter/s and subject/s
relative to and/or connected with, the contracted or awarded PRINTING
of election returns and other election documents to the said Ernest
Printing Corporation.”FAIL NOT UNDER PENALTY OF LAW.
WITNESS the Honorable Bernardo P. Pardo, Ret. Associate Justice, this 25th day of October 2006.
(Sgd.) MA. LUISA D. VILLARAMA
Clerk of the Tribunal
[13] PET rollo, Vol. II, pp. 1842-1847.
SUBPOENAE AD TESTIFICANDUM ET DUCES TECUM
TO: Chairman Benjamin Abalos
Commission on Elections
Main Office, Aduana
Intramuros, ManilaGREETINGS:
You are hereby commanded:
(1) to appear in person before the Presidential Electoral Tribunal and
its designated Honorable Hearing Commissioner Ret. Justice Bernardo P.
Pardo, during the scheduled hearing/proceedings of the above-entitled
case at 2:00 o’clock in the afternoon of Monday, September 18, 2006,
Division Session Hall, Ground Floor, New SC Building and then and there
to testify on the originals of the COMELEC copies of the various
election documents herein below enumerated, described and specified,
and also to further testify on other matters related to the said
various election documents in the possession and custody of the
Commission on Elections, coming from and/or pertaining to, the
Municipalities of Balindong and Taraka, Lanao del Sur as well as the
Province of Lanao del Sur;(2) bring with you to the Tribunal the following documents, therein below specified:
[a] The ORIGINALS of the ELECTION RETURNS-copies for the COMELEC, for the Municipalities of Balindong and Taraka, Lanao del Sur used in the May 10, 2004 elections;
[b] The Originals of the COMELEC COPIES of the Municipal Certificate of Canvass for the Municipalities of Balindong and Taraka, Lanao del Sur, and their accompanying Originals-Comelec copies of the STATEMENT OF VOTES BY PRECINCT for the same Municipalities of Balindong and Taraka, Lanao del Sur, used in the May 10, 2004 election; and
[c] The Originals of the COMELEC COPIES of the Provincial CERTIFICATE OF CANVASS
for the Province of Lanao Del Sur used by COMELEC in senatorial canvass
for the May 10, 2004 elections, including their accompanying Originals of the COMELEC COPIES of the STATEMENT OF VOTES BY MUNICIPALITY for the Province of Lanao del Sur.You shall also testify on the various election documents above
enumerated in respect to their printing, their genuineness and
authenticity, and on the presence of SECURITY FEATURES contained,
placed and/or embedded therein, should there be any.FAIL NOT UNDER PENALTY OF LAW.
WITNESS the Honorable Bernardo P. Pardo, Ret. Associate Justice, this 13th day of September 2006.
(Sgd.) MA. LUISA D. VILLARAMA
Clerk of the Tribunal
[14] PET rollo, Vol. II, pp. 1777-1778.
[15] PET rollo, Vol. II, pp. 1330-1335.
[16] Id. at 1592-1600.
[17] PET rollo, Vol. III, p. 2500.
[18] Rules of the Presidential Electoral Tribunal (2005), Rule 33.
RULE 33. Effect of failure to make cash deposit. –
If a party fails to make the cash deposits or additional deposits
herein required within the prescribed time limit, the Tribunal may
dismiss the protest or counter-protest, or take such action as it may
deem equitable under the circumstances.
[19] PET rollo, Vol. III, pp. 2554-2555.
[20] Id. at 2564-2576.
[21] Id. at 2615-2618.
[22] Rules of the Presidential Electoral Tribunal (2005), Rule 61.
RULE 61. When submitted; contents. – Within twenty
days from receipt of the Tribunal’s ruling on the last offer of
evidence by the protestee, the parties shall simultaneously submit
their respective memoranda setting forth briefly:(a) The facts of the case;
(b) A complete statement of all the arguments submitted in support of their respective views of the case;
(c) Objections to the ballots adjudicated to or claimed by the other party in the revision of ballots;
(d) Refutation of the objections of the other party to the ballots adjudicated to or claimed in the revision of ballots;
(e) Objections to the tallying of election returns and certificates of
canvass raised by the other party in the correction of manifest error;
and(f) Refutation of the objections raised by the other party to the
tallying of election returns and certificates of canvass in the
correction of manifest error.All evidence, as well as objections to evidence presented by the other
party, shall be either referred to or contained in the memorandum or in
an appendix thereto.
[23] PET rollo, Vol. III, pp. 2619-2620.
[24] Id. at 2661-2684.
[25] Id. at 2712-2733.
[26] Id. at 2834-2844.
[27] Id. at 2671-2673.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] SEC. 19. Classes of documents.–For the purpose of their presentation in evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public
officers, whether of the Philippines, or of a foreign country;
x x x x
[35] Municipal Board of Canvassers’.
[36] P.E.T. Case No. 001, February 13, 1996, 253 SCRA 559.
[37] PET rollo, Vol. III, pp. 2840-2844.
[38] Saludo, Jr. v. American Express International, Inc.,
G.R. No. 159507, April 19, 2006, 487 SCRA 462, 483, held that courts
are allowed to take judicial notice of matters which are of public
knowledge, or are capable of unquestionable demonstration, or ought to
be known to judges because of their judicial functions.
[39] Supra note 36.
[40] Id. at 574-575.
[41] Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476.
[42] TSN, November 6, 2006, pp. 89-96.
[43] Rules of the Presidential Electoral Tribunal (2005), Rule 63. Dismissal; when proper.
– The Tribunal may require the protestant or counter-protestant to
indicate, within a fixed period, the province or provinces numbering
not more than three, best exemplifying the frauds or irregularities
alleged in his petition; and the revision of ballots and reception of
evidence will begin with such provinces. If upon examination of such
ballots and proof, and after making reasonable allowances, the Tribunal
is convinced that, taking all circumstances into account, the
protestant or counter-protestant will most probably fail to make out
his case, the protest may forthwith be dismissed, without further
consideration of the other provinces mentioned in the protest.
The preceding paragraph shall also apply when the election protest involves correction of manifest errors.
[44] Computed as follows: 881,722 + 1 = 440,862.
2