G.R. No. L-31604. April 17, 1970
RUFINO S. ANTONIO, JR., PETITIONER, VS. THE COMMISSION ON ELECTIONS, JORGE A. ABAD, RENEE E. AGUDO AND THE PROVINCIAL BOARD OF CANVASSERS, RESPONDENTS.
REYES, J.B.L., J.:
Petitions
for writs of certiorari and prohibition to review and set aside a Resolution
of the Commission on Elections in its Case No. RR-698, dated 2 February 1970,
whereby the Commission unanimously rejected the returns for 21 precincts of Itbayat, Ivana, Mahatao, Uyugan, and Sabtang, all of the province of Batanes,
for having been “prepared at gunpoint”; annulled and set aside the
proclamation of Rufino Antonio, Jr. by the Provincial
Board of Canvassers on 13 November 1969; and by majority vote ordered said
Board of Canvassers to convene immediately and recanvass
the results of the election for the lone congressional district of the province
of Batanes, on the basis of the remaining returns for
Precincts I, 1A, 2 , 3, 3A, 4, 5, 6 and 7 of Basco
and Precinct No. 4 of Sabtang, and to proclaim the
winner on 10 February 1970, unless restrained by the Supreme Court; and
directing the Recording Secretary to furnish copies of said Resolution to the
President, the Speaker and Secretary, House of Representatives, and the House
Electoral Tribunal.
The
Commission on Elections (COMELEC for short) found, among other things, that
after the national elections held on 11 November
1969
the Provincial Board of Canvassers of the Province of Batanes was convened for 12 November 1969 at 8:30 o’clock p. m. Three members failed to attend: the
Vice-Governor and two members of the Provincial Board. In view of their absence, the Provincial Fiscal,
as Chairman of the Board of Canvassers, asked the Officer-in-charge, COMELEC, Batanes, to appoint substitutes for the absent members,
which was done. Thereafter, the Board
immediately proceeded with the canvass, recessed at two o’clock, past midnight, to resume at 10:00
o’clock a. m., 13 November 1969, and completed the canvass
at 3:00 o’clock in the afternoon. Immediately thereafter, the canvassers
proclaimed independent candidate Rufino Antonio,
Jr. Congressman-elect for the lone
congressional district of Batanes and, some time
later, he took his oath of office.
On 26
November and 3 December 1969, Jorge A. Abad, Liberal
Party official candidate, and Mrs. Renee Agudo, Nacionalista Party official candidate, filed independent
petitions with COMELEC, contesting the proclamation of Rufino
Antonio, Jr. by the Provincial Board of Canvassers on the basis of terrorism
practiced by armed men brought to Batanes by candidate
Antonio and strategically distributed in all towns, who destroyed communication
facilities and blocked airport landings, thereby effectively isolating the
province; and that on election day these armed men had attacked the precincts
of Itbayat, Uyugan, Ivana, Mahatao and Sabtang (except Precinct 4 of the latter), driven away the
voters filled in the unused ballots with the name of Antonio, destroyed the
ballots of those voters who had previously managed to vote, prepared the
election returns without counting the votes, and thereafter coerced and
intimidated the boards of inspectors of the precincts to sign the same at
gunpoint. Both petitioners prayed that
the proclamation of Rufino Antonio, Jr. by the Board
of Canvassers be annulled and set aside, and that the election returns in all
precincts in the towns of Batanes, except Basco and Precinct No. 4 of Sabtang,
be declared null and void. But while candidate
Abed also prayed that the canvassing board be directed to make another canvass
on the basis of election returns from Precinct 4 of Sabtang
and the nine (9) precincts of Basco and thereafter
proclaim the winner, candidate Agudo, in her turn,
asked that the returns from Sabtang, Precinct 4, and Basco be declared not expressive of the will of the majority,
since they represent only 28% of the registered voters of Batanes,
and that the holding of a special election be recommended to the President of
the Philippines.
Respondent
(petitioner herein) Rufino Antonio; Jr. answered both
petitions traversing the allegations thereof, and pleading the regularity and
freedom of the election held, and, by way of special defenses, urged (1) lack
of jurisdiction of COMELEC to determine questions involving election returns
regarding members of the House of Representatives; (2) estoppel
of Jorge Abad to maintain the proceedings because he
had filed a protest against Antonio in the House Electoral Tribunal; (3) that
COMELEC had no power to annul the proclamation or suspend its effects; (4) that
both Abed and Agudo waived their rights to contest
the proclamations or are estopped from asserting it
in view of their failure to attend the canvass and impugn therein the validity
of the questioned returns; and (5) lack of power of the COMELEC to annul the
election or declare a failure to elect.
At the
initial hearing on 5 December 1969, the COMELEC issued a resolution suspending
the effects of the proclamation of Antonio pending final termination of the
case and rejected the motions to dismiss filed by Antonio and the Provincial
Board of Canvassers based on grounds substantially identical to the special
defenses pleaded in Antonio’s answers.
Thereafter,
COMELEC proceeded to take evidence, summoning and hearing inter alia the chairmen of the boards of inspectors in the
questioned precincts. Thereafter, it
rendered a unanimous Resolution finding the factual claims of terrorism made by
petitioners (respondents herein) Abad and Agudo to have been substantiated by proof. Overruling Antonio’s special defenses, the
COMELEC voided the returns of the questioned precincts and set aside his
proclamation based thereon. The majority
of the Commission (Chairman Ferrer and member Patajo) further resolved to order the Provincial Board of
Canvassers to reconvene and recanvass the uncontested
returns of Basco and Precinct 4 of Sabtang, and proclaim the winner. Commissioner Miraflor,
however, was, of the opinion that (as contended by candidate Agudo) there was a failure of election that should be
certified to the House of Representatives.
Rufino Antonio, Jr.
then resorted to this Court, as stated heretofore, urging practically the same
special defenses pleaded by him before the COMELEC and praying that the COMELEC
resolution be set aside, and that the House Electoral Tribunal be declared with
exclusive jurisdiction to hear and decide the issues raised by petitioners
below.
WE gave the
petition due course and required respondents Commission on Elections, Jorge Abad, Renee Agudo and the
Provincial Board of Canvassers to answer Antonio’s petition. And upon his motion, a writ of preliminary
injunction was issued to stop the proclamation during the pendency
of these proceedings. Thereafter, the
case was heard, argued and submitted for decision.
The
petitioner, Rufino Antonio, Jr., makes no attempt to
question the findings of the COMELEC to the effect that the returns from the 21
questioned precincts were prepared under systematic threats and intimidation
practiced by heavily armed men upon the members of the respective boards of
inspectors. Said the Commission in its
resolution:
“It would appear quite clear to the Commission that what
transpired inside the polling place in Itbayat, Uyugan, Ivana, Mahatao and Sabtang, except
Precinct 4 on election day, particularly in regard to the preparation of the
returns in these precincts through the intervention or upon the dictation of
armed goons, was the culmination of an operation which had for Its, objective
the election of one of the congressional candidates. The destruction of the communication
facilities of RCPI and of the Bureau of Telecommunication in Basco, as well as of the radio phone of the Weather Bureau
Station; the immobilization of practically all government and private motor
vehicles, including those belonging to the Bureau of Public Highways and Bureau
of Public Works, the Provincial Governor, the Superintendent of Schools and the
Provincial Hospital ambulance; the presence of a private plane squatting across
the runway of the Basco Airport since November 8,
1969; the unexplained presence of unidentified ships in the waters of Batanes; the mysterious trips of a helicopter; the frisking
of all arrivals by PAL in search of arms; the checkpoints manned by PC Special
Forces whose presence in Batanas had not been reported
to the Commission on Elections in Manila, and as a matter of fact, the Commission
had grounded the use of these PC Special Forces in Cagayan
and Marinduque and in all other places where their
presence had been reported to the Commission before election and on election
day; checkpoints which prevented the free movement of not only the government
officials including the Governor but also of the Bishop of Batanes
who headed the CNEA in said province; the precision in movements of these armed
goons who swooped down upon the helpless members of the board of inspectors,
and drove away the voters awaiting for their turn to vote, destroying or
burning the ballots validly cast and filling in the unused ballots with the
name of their candidate – all of these occurrences and happenings formed part
of a common pattern joined together like pieces of a jigsaw puzzle which when seen
separately are meaningless and incomprehensible but put together reveal a
picture so awesome and appalling, clearly pointing to the rape of democracy in
Batanes on November 11, 1969. (Appendix “Y” of Antonio’s
Petition, pp. 31-33).”
Petitioner
Antonio actually rests his case on the arguments that all the questioned
returns appear clean and regular on their face; that the Board of Provincial
Canvassers was regularly constituted; that the validity of the questioned
returns was not raised at any time during, the canvass, which resulted in
petitioner’s proclamation. From these
premises, he avers first of all that only the House Electoral Tribunal, and not
the COMELEC, can review and set aside such canvass and proclamation. Yet he admits that under the repeated rulings
of this Court the COMELEC can set aside an illegal proclamation such as one
based on incomplete or tampered returns (Petitioner’s memorandum, page 3). Over and over, in fact, has this Court held
that it is the duty of canvassers to be satisfied of the genuineness of the
returns, that the papers presented to them are not forged or spurious.[1] If the COMELEC in the
exercise of its duties under Section 3 of the Revised Election Code, can
require Boards of Canvassers to consider only genuine and authentic,
not falsified, returns, it can logically require such boards to exclude from
the canvass any returns that were actually the product of coercion, even if
they be clean in their face. Direct
authority to this effect is our decision in Pacts vs. COMELEC, L-29026, 28 September 1968, 25 SCRA, page 377, where we specifically ruled as
follows:
“We must now say that an election return prepared at the point
of a gun is no return at all; it is not one notch above a falsified or spurious
return. Comelec
was correct in ruling that there was no valid return for the office of Mayor at
Precinct 22 and that no vote should be counted for said precinct in the canvass
of votes for Mayor.”
On the
strength of Angara vs. Electoral Commission (1936) 63
Phil. 139, petitioner Antonio urges that the Electoral Tribunal of the House
has, under the Constitution, exclusive jurisdiction to pass upon and determine
the election, returns and qualifications of the members of the House of
Representatives, and that such grant of power is intended to be as complete and
unimpaired as if it had remained originally in the legislature; “and this
is as effective a restriction upon the legislative power as an express
prohibition in the Constitution” (cas. cit.,
page 176). But the Angara
case did not involve any conflict between the Commission on Elections and the
Electoral Tribunals, neither of which existed when that decision was rendered;
and the fact that the powers of the Electoral Commission (now replaced by the
House and Senate Electoral Tribunals) restrict and exclude the legislative
power in matters concerning the election, returns and qualifications of the
members of the House in election contests, does not mean that the COMELEC may
not now exercise its constitutional power to “enforce and administer all
laws relative to the conduct of elections” , and, in the course thereof,
to require that canvassers base their proclamations only on genuine, authentic
and untampered returns, and annul any proclamations
departing from this rule.
“‘The purpose of the Revised Election Code is to protect the
integrity of the elections and to suppress all evils that may vitiate its
purity and defeat the will of the voters.
The purity of the elections is one of the most fundamental requisites
of popular government. The Commission
on Elections, by constitutional mandate, must do everything in its power to
secure a fair and honest canvass of the votes cast in the elections. In the performance of its duties, the
Commission must be given a considerable latitude in adopting means and methods
that will insure the accomplishment of the great objective for which it was
created — to promote free orderly and honest elections. The choice of means taken by the Commission
on Elections, unless they are clearly illegal or constitute grave abuse of
discretion, should not be interfered with.
Technicalities, which are not conducive to free, orderly and honest
elections, but on the contrary may defeat the will of the sovereign people as
expressed by their votes, should not be allowed to hamper the Commission on
Elections in the performance of its duties.’” CAUTON V. COMELEC L-15467, April 27, 1967 10 SCRA 911.
The true
measure of the jurisdiction of the House and Senate Electoral Tribunals was set
in our decision in Vera vs. Avelino, 77 Phil. 192,
200, to the effect that:
“The Convention, however, bent on circumscribing the latter’s
authority to contest’ relating to the election, etc. altered the draft. The Convention did not intend to give it all
the functions of the Assembly on the subject election and qualifications
of its members. The distinction is not
without a difference. ‘As used in
constitutional provisions’, election contest ‘relates only to statutory
contests in which the contestant seeks not only to oust the intruder, but also
to have himself inducted into office. ‘ (Laurel on Elections, Second Edition,
p. 250; 20 C.J., 58.) “
In
harmony with this principle, Section 182 of the Election Code provides that
“in contests under their respective jurisdictions the Electoral tribunals
of the Senate and the House of Representatives shall have and exercise the same
powers which the law confers upon the Courts …”, it being well-known that the
exercise of judicial powers are called for only upon the filing of the
corresponding petition. Until a regular
protest or contest is filed, therefore, the jurisdiction of the Electoral
Tribunals does not come into play in order to exclude the authority of the
COMELEC.
Thus,
the power of the COMELEC to set aside returns that are falsified or are not
authentic and genuine and to order the same excluded from a canvass is distinct
and separate from the authority inherent in the Electoral Tribunals of the
House or the Senate, in the course of an electoral protest, to set aside such
returns whenever the statements of votes cast contained therein do not tally
with the valid votes enclosed within the ballot boxes themselves. No conflict of jurisdiction can arise since
the powers of the COMELEC and the Electoral Tribunals are exercised on different
occasions and for different purposes.
The COMELEC is not concerned with the veracity of the returns, but with
their genuineness and regularity; and it is self-evident that a return
accomplished by the election inspectors under threats and coercion by armed men
is in law no return at all that the canvassers may take into account.[2] As a corollary, the COMELEC
can sat aside an improper canvass, as well as the resulting proclamation, and
this Court has repeatedly so ruled[3].
“’These cases, however, are not to be read as throwing
overboard Comelec’s authority to inquire into whether
or not a proclamation is null and void.
For, these cases merely emphasize the rule that where a
proclamation is validly made ERRORS in the proclamation main only be raised in
a full-dress election protest.
“’ The ratiocination advanced by petitioner fails to take stock of
the fact that where a proclamation is null and void, that proclamation is no
proclamation at all. This is
axiomatic. To be remembered is Mutuc v. Commission on Elections, supra,
citing Demafiles vs. Commission on
Elections, supra. Our ruling there
is this: ‘ It is indeed true that after proclamation the usual remedy of any
party aggrieved in an election is to be found in an election protest. But that is so only on the assumption that
there has been a valid proclamation.
Where as in this case at bar the proclamation itself is illegal
the assumption of office cannot in any way affect the basic issues. ‘
(Ibid) “
It may
be that the canvassers were not, at the time of the canvass, aware that the
returns were coerced; that may relieve them from liability but does not
validate such returns, nor prevent the COMELEC from subsequently voiding them
and ordering a new canvass whenever said body is satisfied of the compulsive
character of the returns.
It is
urged that the respondents Abad and Agudo are in estoppel from
questioning these coerced returns because of their failure to attend the
canvassing and there to object to them.
We find this contention untenable in view of the circumstances then
prevailing. Not only was Abad sick at the time, but no adequate term was given for
him to attend. In truth, the canvass was
so precipitately conducted [starting at eight o’clock in the evening of the day
following the election (12 November 1969) and completed at 3 o’clock of the
following afternoon] that three of the de jure
members of the Provincial Board of Canvassers had, likewise, no opportunity to
be present, and their substitutes were appointed without even attempting to
secure from the COMELEC an order for their substitution, as required by section
159 of the Election Code. A reading of
the minutes of the canvass proceedings leaves no doubt that the short notices (barely
an hour) given to Vice-Governor Gato and two members
of the Provincial Board were expressly designed to prevent their attendance,
and this maneuver would suffice to annul the canvass (Pacts vs. COMELEC, ante).
In
addition, some of the returns considered by the canvassers were plainly irregular
on their face. Thus, for example, the
returns for Precinct 1 of Sabtang showed only the
signatures of two inspectors (See the photograph, Abad’s
Answer, Annex “D”); that of Precinct 2 of Sabtang
(do, Annex “E”) showed no count of the valid and spoiled ballots, nor
did it show any votes for Senators; that of Precinct II -A of Itbayat contained an erasure by cancellation and a
correction without initials (Annex “F”), and the same is true of the
return for Precinct 1 of Ivana, where the votes of
Jose W. Diokno for senator (224) appear cancelled
without initials or explanation (Annex “J”). In the return for Precinct 2 of Mahatao (Annex”H“), an
equally patent anomaly appears: the votes for candidates Abad
(Jorge), Abad (Senen), Agudo and Villalva are set down
as “One” in letters and eleven (11) in figures. Yet, despite such blatant anomalies, all
these returns were improperly considered regular by the canvassers. Hitherto, in Solidum
vs. Macalalag, L-28666, 20 May 1969, 28 SCRA 200; Purisima vs. Salanga, L-22335, 31
December 1965, 1965, 15 SCRA 704, and Javier vs. Comelec,
L-22248, 30 January 1965, 13 SCRA 156, we have ruled that failure to
investigate and to disregard patent irregularities, such as these, authorizes
the COMELEC to annul the canvass and resulting proclamation.
To cap
it all, there is the testimony of Governor Agudo,
himself a member of the Board of Canvassers, that in Batanes
“there was terrorism before, during and after the elections”.
All these
circumstances, precipitate canvassing, terrorism, lack of sufficient notice to
members of the Board, and disregard of manifest irregularities on the face of
the questioned returns, build up to prove that the alleged canvassing was mere
ceremony that was predetermined and manipulated to result in nothing but the
hurried proclamation of petitioner Antonio as Congressman-elect. They also establish convincingly that
whatever objections to the returns could have been interposed by the respondent
candidates, had they been given opportunity to do so, would have been useless,
and would not have been considered nor varied the result. Wherefore, the failure of respondents to
interpose seasonable objection at the canvassing aforesaid could not have
amounted to either estoppel or waiver of their rights
to object to the questioned returns.
Finally,
Antonio’s argument that Abad waived the remedy sought
from the COMELEC by filing an unconditional protest with the House Electoral
Tribunal on 28 November need not give pause: for the Electoral Tribunal itself
admitted Abad’s amended protest, recognized that the
protest was filed ex abundance cautela and,
upon Abad’s motion, held further proceedings in
abeyance “until after the Commission on Elections has resolved the matter
or matters now pending before it”.
The House Electoral Tribunal, in other words, recognized the
jurisdiction of the COMELEC, and beyond that this Tribunal is not called upon
to go. Anyway, a cautelary
protest does not deprive the COMELEC of its jurisdiction.[4]
Nor is
petitioner’s case bolstered by his taking an oath of office on 30 November 1969. “Where
the proclamation itself is illegal, the assumption of office can not in any
way affect the basic issues” (Mutuc vs. COMELEC,
G. R. L-28517, 21 February 1968, 22 SCRA 662).
In case
G. R. No. L-31609, candidate Renee Agudo appealed
from the COMELEC resolution in so far as the same ordered the Provincial Board
of Canvassers to reconvene and canvass the returns from those precincts not
affected by terrorism and to proclaim the winner on the basis of such
returns. Appellant Agudo
takes the position that, since the votes recorded (1,363) for all the precincts
of Basco and precinct 4 of Sabtang,
and reported for the only precincts not questioned, represent only 28% of the
total registered voters, the proper course of the COMELEC is to certify to a
failure of election in order that a special election may be called.
Implicit
in the stand taken by respondent Agudo is the
assumption that for a candidate to be elected, he should receive the votes of a
majority of the registered electors.
This thesis finds no support in our election laws. There is no provision in our election
statutes declaring that a majority of the registered voters must cast their
votes, or that a winning candidate must receive a majority of the votes of the
registered electors, or a majority of the votes cast. The only mention in the Election Code of the
number of votes required of a congressional candidate is in section 165,
providing that if from the canvass “it should appear that 2 or more have
received the largest number of votes“, then the canvassers shall
draw lots and “shall proclaim as elected that candidate who may be favored
by luck, and the candidate so proclaimed shall have the right to assume office in
the same manner as if he had been elected by a plurality vote”. A plurality of valid votes, therefore, is all
that is required in order that a candidate may win the election, even if he
obtains less than an actual majority.
It is, likewise,
our view that the certification prayed for by respondent Agudo
is not within the powers of the COMELEC to make. It is well to recall here that the Commission
is constitutionally charged with the “enforcement and administration of
all laws relative to the conduct of the elections” (Article X,
section 2, Constitution). The Constitution
also empowers the COMELEC to “decide, save those involving the right to
vote, all administrative questions affecting elections”, all with a view
to ensuring “free, orderly and honest elections”. We seriously doubt that a declaration of a
failure to elect, notwithstanding the fact that 1,363 valid votes have been
cast and counted, can be considered an “administrative question” that
the COMELEC has power to decide. Such a
certification has no bearing on the conduct of the elections or the electoral
process, but concerns the results thereof. It would bring about the invalidation or
nullification of the votes validly cast in the uncontested precincts,
effectively disenfranchising the voters who cast them; and this Court has
already ruled that “the power to decide election contests” (which is
avowedly not lodged in the COMELEC)”includes the power to determine the
validity or nullity of the votes questioned by either of the contestants.”[5]
Be that
as it may, all doubts on the question can be set at rest by resorting to the
provisions of Section 177 of the Election Code.
It prescribes that it is for the Court taking cognizance of an election
protest to “declare who among the parties had been elected, or, in the
proper case that none of them has been legally elected“. Since the Electoral Tribunals of Congress,
pursuant to Section 182 of the Election Code, “shall have and exercise the
same powers which the law confers upon the Courts, it becomes plain that the
declaration of a failure to elect must, in the case, be sought from the
Electoral Tribunal of the House and in the appropriate election contest,
because such failure can only mean that none of the competing candidates has
been legally elected. To give way to a
protest wherein such declaration can be made, a winner must be proclaimed.
The
Justices are unanimous in the conclusion that the proclamation of petitioner Rufino S. Antonio, Jr. was correctly and properly annulled
and set aside by the Commission on Elections in view of the large scale and
unprecedented terrorism practiced by armed goons in favor of said candidate,
and, therefore, the action of the Commission must be; and is, affirmed in this respect. The justices are, however, evenly divided on
the issue whether the COMELEC should have ordered, as it did, a recanvass and proclamation on the basis of the returns for
Precincts 1, 1A, 2, 3, 3A, 4, 5, 6 and 7 of Basco and
No. 4 of Sabtang.
Five justices, including the writer of this opinion, believe that such a
proclamation is a necessary precedent to a protest in the Electoral Tribunal of
the House, wherein the question of failure to elect may be resolved. Five other Justices dissent, believing that
the proclamation ordered by COMELEC is improper under the circumstances, and
that the COMELEC should confine itself to declaring a failure of election and
to certifying the matter to the House Electoral Tribunal or, as proposed by
Mr. Justice Enrique Fernando, to the House of Representatives direct. Under the Rules of Court (Section 11, Rule
56), a rehearing on this second point must be had.
WHEREFORE, the petition of candidate Rufino S. Antonio is hereby dismissed, and the order of
COMELEC invalidating his proclamation is affirmed. But the petition of candidate Agudo that COMELEC certify a failure of election and
recommend the holding of a special election, as well as the petition of
candidate Abad that a proclamation be ordered made on
the basis of the valid returns, are ordered set for reargument
and new hearing as soon as practicable.
SO ORDERED.
Dizon, Makalintal,
and Zaldivar,
JJ., concur.
Concepcion, C.J., voted in favor of this opinion.
Teehankee, J., files a separate opinion
Ruiz Castro and Villamor, JJ., concur in
the separate opinion of Justice Teehankee.
Reyes, JBL., Acting C. J.,
certifies that Mr. Justice Antonio P. Barredo voted
in favor of Justice Teehankee’s opinion.
Fernando, J., see concurring
and dissenting opinion.
[1] Demafiles vs. Commission on Elections, L-28396, 29
December 1967; 21 SCRA 1462, 1466; Ong vs.
Commission on Elections, 29 January 1968, 22 SCRA 241, 249; Espino
vs. Zaldivar, L-22325, 11 December 1967, 21
SCRA, 1215; Cauton vs. Comelec,
L-25467, 27 April 1967, 19 SCRA 911.
[2] Pacis vs. COMELEC, supra.
[3] Aguam vs. COMELEC, L-28955, 28 May 1968, 23 SCRA 889-890, and cases cited
therein; Mutuc vs. COMELEC, L-28517, 21 Feb. 1968, 22 SCRA 669.
[4] Pacis vs. COMELEC, ante.
[5] Nacionalista Party vs. Commission on Elections, 85
Phil. 149, 156; Abes vs. COMELEC, L-28348, 15 December 1967, 21 SCRA, 1252, and
cases therein cited.
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CONCURRING AND DISSENTING
FERNANDO, J.:
To the
extent that the ably-written opinion of Justice J. B. L. Reyes sustains the
resolution of the respondent Commission on Elections annulling the proclamation
of petitioner Rufino S. Antonio, Jr., I am in full
agreement and vote accordingly. It is
with regret, however, that I find myself unable to agree with its conclusion,
affirming the resolution of a majority of respondent Commission ordering the
Provincial Board of Canvassers of Batanes, to convene
immediately and recanvass the results of the election
for the lone congressional district of the province of Batanes
on the basis of the returns for precincts 1, 1A, 2, 3, 3A, 4, 5, 6 and 7 of Basco and precinct 4 of Sabtang
and to proclaim the winner as a result of such recanvass. While it is to be admitted that there was no
failure to abide by our previous decisions of pertinence and relevance, there
is, to my mind, the unique fact of the mass coercion and terrorism employed
during the day of election on November 11, 1969, so vividly placed on
record in the challenged resolution of the respondent Commission on
Elections. That, for me at least, calls
for a departure from our previous decisions cited in support of the opinion of
the Court. There is much in the equally
lucid separate opinion of Justice Teehankee that
calls for approval, but, for reasons hereafter to be set forth, I cannot
likewise yield assent to his conclusion that the ultimate resolution of the
question as to who should be declared the duly elected Congressman for Batanes should be left to the House Electoral
Tribunal. Hence, this separate
concurring and dissenting opinion.
1.
The opinion of Justice Reyes
quotes from the finding of facts a respondent Commission, which for us is
conclusive, the following: “ ‘It would appear quite clear to the Commission
that what transpired inside the polling place in Itbayat,
Uyugan, Ivana, Mahatao and Sabtang, except
Precinct 4 on election day, particularly in regard to the preparation of the
returns in these precincts through the intervention or upon the dictation of
armed goons, was the culmination of an operation which had for its objective
the election of one of the congressional candidates.’ ” After particularizing
the destruction of the communication facilities; the immobilization of
practically all government and private motor vehicles; the presence of a
private plane squatting across the runway of the Basco
Airport since November 8, 1969; the unexplained presence of unidentified ships
in the waters of Batanes; the mysterious trips of a
helicopter; the frisking of all arrivals by PAL in search of arms; the
checkpoints manned by PC Special Forces whose presence in Batanes
had not even been reported to it; checkpoints which prevented the free
movement of government officials including the Governor; “the precision in
movement of such armed goons who swooped down upon the helpless members of the
board of inspectors, and drove away the voters awaiting for their turn to vote,
destroying or burning the ballots validly cast and filling in the unused
ballots with the name of their candidate,” respondent Commission, as noted
in the opinion of Justice Reyes, appeared to be more than justified in
concluding, “all of these occurrences and happenings formed part of a
common pattern joined together like pieces of a jigsaw puzzle which when seen
separately are meaningless and incomprehensible but put together reveal a
picture so awesome and appalling, clearly pointing to the rape of democracy in Batanes on November 11, 1969.” The choice of words
while quite emphatic cannot very well be characterized as an exercise in
hyperbole.
2.
There has been of late on our
part, especially so since Cauton v. Commission on
Elections,[1] a
marked recognition of the broad power of respondent Commission to assure that
the canvassing and proclamation reflect with fidelity and accuracy the true
results of an election. Thereby there
may be an approximation of the constitutional objective of insuring that it would
be “free, orderly, and honest.”[2]
The underlying assumption, it would appear to me, is that the electors are able
to cast their votes, thereafter to be counted by the boards of inspectors,
preparatory to their being canvassed so that the proclamation could be
made. If the facts contradict such an
assumption as in this case, the term used by respondent Commission, “rape
of democracy” depicting the tragic plight of the voters on election day,
then cannot see my way clear to according the seal of our approval to the
conclusion reached by the majority of respondent Commission that under the
unique circumstances thus disclosed, there could be a valid canvassing and
proclamation.
3.
Nor is this to lose sight of the
fact that the returns for precincts 1, 1A, 2, 3, 3A, 4, 5, 6 and 7 of Basco as well as precinct 4 of Sabtang
could be utilized for the purpose of the canvass and the subsequent
proclamation of the candidate elected as congressman. What appears for me decisive is that more
than a majority of the electors were prevented from exercising their right to
vote. This is equivalent to no election
at all having been heId. So it would appear likewise for Justice Teehankee, in whose separate opinion Justice Castro joins:
“Here, more than two-thirds of the returned votes totalling
4,499 had likewise been rejected for intimidation and coercion of the
inspectors, such that the less than one-third remainder of 1,363 votes did not
constitute a valid constituency for a valid election. The Comelec
majority admitted as much, recognizing that ‘the remaining returns constitute
only 28% of the constituency.’ Dissenting Commissioner Miraflor
gave in addition the figures from the 1953 to the 1967 elections showing therefrom the average percentage of voting in Batanes to be 85% of the registered voters, and remarking
that ‘(T)he popular will is expressed by such stable and regular percentages of
voting. Applying these percentages of
voting in past elections to the 1969 elections, of the 4,866 registered voters
as reported by the election registrars, around 85% or 4),137 would have cast
their votes in the 1969 elections. To
me, the results of only 10 out of 31 precincts, or of 1,363 votes out of 4,137
possible actual voters, or of 32.94% of the voters voting is not indicative of
the popular will of the people of Batanes.'”
4.
It would then be, to my way of
thinking, to disregard the republican character of our polity as enjoined by
the Constitution[3]
to predicate a choice on the part of the people of Batanes
as to who their Congressman shall be considering what did transpire. As we pointed out in a recent case: “A
republic then to be true to its name requires that the government rests on the
consent of the people, consent freely given, intelligently arrived at, honestly
recorded, and thereafter counted. Only
thus can they be really looked upon as the ultimate sources of established
authority. It is their undeniable right
to have officials of their unfettered choice.
The election law has no justification except as a means for assuring a
free, honest and Orderly expression of their views.”[4]
The
words of Justice Laurel are equally apposite: “As long as popular
government is an end to be achieved and safeguarded, suffrage, whatever may be
the modality and form devised, must continue to be the means by which the great
reservoir of power must be emptied into the receptacular
agencies wrought by the people through their Constitution in the interest of
good government and the common weal.
Republicanism, in so far as it implies the adoption of a representative
type of government, necessarily points to the enfranchised citizen as a
particle of popular sovereignty and as the ultimate source of the established
authority.”[5] If on the undisputed facts,
the wishes of more than a majority of the enfranchised citizens of Batanes, would not even be taken into account, then for me
less than full respect is accorded to one of the most fundamental principles of
our Constitution.
5. What is to be done then? Considering that under the view I take
of the case, in the light of the incontrovertible facts so meticulously and
vividly spelled out by the respondent Commission, it should certify to Congress
that unfortunately the right to vote was frustrated and nullified so that the
appropriate remedial measure in the form of a new election could be provided
for by appropriate legislation Vast and extensive are indeed the implications
flowing from the generous grant under the Constitution to respondent Commission
to “have exclusive charge of the enforcement and administration of all
laws relative to the conduct of elections” and to “exercise all other
functions which may be conferred upon it by law.”[6]
Thereby the totality of the executive power heretofore exercised by the
President insofar as the execution of such statutes is concerned is transferred
to an independent constitutional agency to assure that there be neutrality and
impartiality and thus safeguard the right of suffrage from being reduced to a
farce or mockery.[7]
It could happen though, as it did happen in this instance, that notwithstanding
the firmness and vigor with which respondent Commission pursued measures to
live up to such delicate responsibility, forces, which it could not anticipate
and beyond its control, could impress on its efforts the doom of futility. It could very well be of course that natural
or fortuituous causes could have led to a similar
result of no election having taken place.
The fact that here the cause for such frustration of the electoral
powers was man-made should not, for me, call for a distinction as to the legal
consequence.
To be
more specific, respondent Commission is required to submit to the President and
the Congress, “following each election, a report on the manner in which
such election was conducted.”[8] In compliance with such
constitutional duty, all that respondent Commission has to do is to acquaint
the President and the Congress of what did happen in Batanes
on November 11, 1968, as found by it after due hearing and embodied in its
resolution now before us. There was
indeed, in the vivid language of respondent Commission, “the rape of
democracy.”
Such
being the case, Congress can be trusted to act.
It is the sole agency that under the Constitution can provide for the
holding of an election that would thus give the opportunity for all qualified
electors of Batanes so-minded to make full use of
their basic right to vote. The power to
call for a special election and when it shall be held is legislative in
character.[9] It appears clear to me that
upon Congress being officially informed in accordance with the above
constitutional provision of what occurred in Batanes,
tragic in its implications for the rule of law, it can be expected in turn to
remedy matters in the only way that the situation calls for, the enactment of a
measure as to when the voters of that province will have their right of
suffrage truly respected and given force and effectivity. That, for me at least, is the appropriate
response to the unique situation that, it is to be hoped, will not be repeated.
6. It is in the light of the above that I find myself unable to go
along with Justices Teehankee and Castro, with whose
opinion I am in the main in agreement, as to their conclusion that the ultimate
disposition of the matter should be left to the House Electoral Tribunal. While not devoid of merit such an approach
would for me entail further delay, which could be avoided, as it is not
improbable that after due hearing the House Electoral Tribunal would arrive at
a similar conclusion reached by respondent Commission as to no election having
in fact taken place. Moreover, I am not
fully convinced that the House Electoral Tribunal could assume jurisdiction in
the absence of a valid proclamation of the winning candidate, a prerequisite
which from the view I have of the case cannot be validly satisfied.[10]
[1]
L-25467, April 27, 19 SCRA 911. The other cases are Espino
v. Zaldivar, L-22325, Dec. 11, 1967, 21 SCRA
1204; Ong v. Commission on Elections,
L-28415, Jan. 29, 1968, 22 SCRA 241; Mutuc v.
Commission on Elections, L-28517, Feb. 21, 1968, 22 SCRA 662; Pedido v. Commission on Elections, L-28539, March
30, 1968, 22 SCRA 1403; Aguam v. Commission on
Elections, L-28955, May 28, 1968, 23 SCRA 883; Pelayo
Jr. v. Commission on Elections, L-28869, June 29, 1968, 23 SCRA 1374; Pacis v. Commission on Elections, L-29026, Sept. 28,
1968, 25 SCRA 377; Ligot v. Commission on
Elections, L-31380, Jan. 21, 1970; Abrigo v.
Commission on Elections, L-31374, Jan. 21, 1970; Moore v. Commission On
Elections, L-31394, Jan. 23, 1970; Ilarde v.
Commission on Elections, L-31446, Jan. 23, 1970
[2]
Art. X, Sec. 2, Constitution of the Philippines.
[3]
“The Philippines
is a republican state.” Art. II, Section 1, Constitution.
[4] Badelies v. Cabili,
L-29333, Feb. 27, 1969, 27
SCRA 113.
[5] Moya v. Del Fierro, 69
Phil., 199, 204 (1939).
[6]
Art. X, Sec. 2, Constitution.
[7]
Cf. Abcede v. Hon. Imperial, 103 Phil. 136
(1958).
[8]
Art. X, Sec. 4, Constitution.
[9] Ututalum v. Commission CM Elections, L-25349, Dec. 3, 1965, 15 SCRA 465 cited with
approval in Jenairo v. Commission on
Elections, L-28315, Dec. 8, 1967, 21 SCRA 1173.
[10]
Cf. Lachica v. Yap,
L-25379, Sept. 25, 1968, 25
SCRA 140.
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SEPARATE OPINION
TEEHANKEE, J.:
Two
jurisdictional questions challenging the authority of the Comelec
to issue the Resolution before us are raised in the petitions submitted for
decision.
Petitioner
Antonio in Case L-31604 challenges Comelec’s
annulment of his proclamation, notwithstanding its apparent due regularity, as
an encroachment on the jurisdiction of the House Electoral Tribunal.
Petitioner
Agudo in Case L-31609 challenges the authority of Comelec to order a recanvass and
the proclamation of Abad on the basis of the
remaining valid returns of 10 out of 31 precincts in 1 out of the 6 towns of
the entire province of Batanes, when Comelec itself concedes that there has been a failure of
election.
I
Petitioner
Antonio challenges the Comelec Resolution annulling
his proclamation on November 13, 1969, by the Provincial Board of Canvassers
as the winning candidate for the lone Congressional district of Batanes, on the ground that such annulment was beyond the
jurisdiction and authority of the Comelec, contending
that “Where there is no objection during the canvass, which is completed
with due regularity, and the proclamation is made, any action to correct the
canvass and set aside the proclamation would fall within the exclusive
jurisdiction of the Electoral Tribunal.”[1]
The
fallacy of petitioner Antonio’s contention lies in his failure to consider one
overriding factor, i. e. the undisputed finding of
the Comelec, after the hearings held by it upon complaints
of his two principal opponents, Liberal Party official candidate Jorge Abad and Nacionalista Party
official candidate Renee Agudo, in discharge of its
constitutional duty of enforcing and administering our laws relative to the
conduct of elections for the Purpose of insuring free, orderly and honest
elections, that the proclamation of petitioner Antonio was based upon
twenty-one (21) void gun-point returns, out of a total of thirty-one (31)
returns of the province.
The Comelec’s uncontroverted finding
was that Election Day in 5 out of 6 towns in Batanes
“involved a wholesale operation to frustrate the popular will through the
use of returns extracted at the point of a gun from helpless boards of
inspectors and that the techniques and methods used by the malefactors to
achieve their ends (were) most sophisticated and devastatingly effective.”
An
illegal proclamation based on spurious or manufactured returns, be they returns
manufactured by criminal collusion of the inspectors or at the point of a gun
is no proclamation and is null and void.
Petitioner Antonio himself concedes “that the Cornelec
can set aside an illegal proclamation, such as one based on incomplete
or tampered returns, or when the board of canvassers is unlawfully constituted
or had no quorum or did not meet at all.”[2] And certainly, as we said
in the second Pacis case, “an election return
prepared at the point of a gun is no return at all; it is not one notch above a
falsified or spurious return.[3] His proclamation on November 13, 1969, based on twenty-one (21) gun-point and spurious
returns, was therefore illegal and null and void. As this Court, through Mr. Justice Sanchez
stated in Solidum vs. Macalalag,[4] “(E)ven
on the assumption that the proclamation is valid petitioner’s case still fails. For proclamation is in umbilical dependence
upon the returns.” Where the canvass and proclamation, otherwise regular
and valid, were based on spurious returns, the canvass and proclamation must
likewise be held to be equally spurious.
This
Court so pointed out as early as Nacionalista
Party vs. Cornelec[5] that “(T)he canvassers
are to be satisfied at the genuineness of the returns — namely, that the
papers presented to them are not forged and spurious, that they are returns,
and that they are signed by the proper officers where the returns are obviously
manufactured, as where they show a great excess of votes over what could
legally have been cast, the board will not be compelled to canvass them.”
Petitioner
Antonio’s contention that simply because no objection was made by his
opponents in the first instance during the canvass to the inclusion of the
twenty-one (21) gun-point returns and the proceedings were completed and his
proclamation made with apparent due regularity, the Comelec
was thereby foreclosed and deprived of jurisdiction to investigate the
complaints made at the earliest opportunity for the annulment of the canvass
and proclamation, must therefore fail, because:
1.
The fact that the twenty-one (21)
gun-point returns were not denounced as such at the canvassing of November 13,
1969, prescinding from the other circumstances of
“precipitate canvassing, terrorism, lack of sufficient notice to members
of the Board, and disregard of manifest irregularities on the face of the questioned
returns” cited by Mr. Justice Reyes in the main opinion, does not in any
way cure their being void returns ab initio.
2.
This was not then a question of a
mere error in the proclamation to be threshed out in a regular election
protest, but a proclamation that was null and void ab
initio because based on void returns. Thus, in Aguam
vs. Comelec,[6]
this Court upheld the Comelec resolution (issued on
April 27, 1968) and sustained its jurisdiction in giving due course more than
five (5) months after the proclamation (on November 21, 1967) to the
respondent-complainant Balindong’s petition filed (on
January 6, 1968) with Comelec one and a half (I -1/2)
months after the proclamation. The Comelec had ordered the opening of the ballot box to
determine the genuineness of a decisive election return, a tampered copy of
which was used in the proclamation, notwithstanding that the two-weeks period
from proclamation, allowed for protests, had long elapsed, and therein
petitioner Aguam had assumed (on December 30, 1967)
the questioned office. We reiterated
therein the rule that “where, as in the case at bar, the proclamation
itself is illegal, the assumption of office cannot in any way affect the basic
issues.” With the annulment of the proclamation, notwithstanding that
respondent Balindong, as in this case, had no
material time and opportunity to question the inclusion of the disputed return
during the canvassing, respondent Balindong was
eventually ordered proclaimed by the Comelec and
assumed the office.
3.
We stated in the first Pacis case[7]
that “(S)ound practice seeks to accommodate
every plausible theory which will discourage if not eliminate, minimize if not
curb, unlawful proclamation of, and assumption of public trust by, the wrong
man. Clean elections control the appropriateness
of the remedy.” In the second Pacis case, supra,
we cited the judicial approval accorded Comelec’s
broad power under the Constitution and the statutes and its exclusive authority
“to decide, save those involving the right to vote all administrative
questions, affecting elections”,[8]
pointing out that “(I)ndeed, the diversity of
election frauds and anomalies that have been concocted by rival parties,
surpassing legislative anticipation and scuttling the prescribed manner of
conducting elections, necessitate resort to Comelec’s
general power of administration and supervision.”
4.
Under the circumstances, what the
board of canvassers has done improperly in the matter of the precipitate and
illegal proclamation of Antonio may be undone by Comelec
upon timely application or on its own initiative, and similarly, what the board
has failed to do may be done by Comelec, under its
broad powers of “direct and immediate supervision” over the
provincial canvassing board. (Section
3, Revised Election Code). As we said in
the analogous case of Cauton vs. Comelec,[9]
“(O)nce the Commission on Elections is convinced
that the election returns in the hands of the board of canvassers do not
constitute the proper basis in ascertaining the true result of the elections,
it should be its concern, nay its duty, to order the taking of such steps as
may be necessary in order that the proper basis for the canvass is obtained or
made available.”
5.
That Comelec,
rather than the House Electoral Tribunal is the proper agency vested with
jurisdiction to ascertain that only genuine returns, as against forged,
spurious or manufactured or gun-point returns, are used for the canvass and
proclamation is borne out by the fact that it is Comelec
that is vested by the Constitution with the authority for deputizing all law
enforcement agencies and instrumentalities of the Government for the purpose
of insuring free, orderly and honest elections.
The House Tribunal aside from not being vested with jurisdiction, simply
does not have the resources and facilities, not to mention that after the
elections, the six House members thereof are simply in no position to attend to
and decide such urgent administrative questions affecting the elections and
there is a hiatus with the cessation in office of non-reelected members, which
has to await the Tribunal’s reorganization after the new Congress is convened
in the following year on the fourth Monday of January.
6.
When the Comelec
rejects or orders the exclusion from the canvass of void returns, because they
are obviously manufactured. (as in the Lagumbay case)
or tampered returns (as in the Cauton case) or
spurious or “gun point returns, as in the case at bar (and in the Pacis case), it does not in law annul the returns but
merely complies with its duty of seeing to it that only genuine returns are
used in the canvass for determining and proclaiming the true result of the
election. Where an authentic untampered copy of the return may be retrieved from the
ballot box, we have upheld its authority to order the opening of the ballot
box, in order to retrieve such copy, as in the Cauton
and Aguam cases.
Of course, where all the copies of the returns are spurious, because
manufactured by collusion or at gunpoint, there simply are no returns to go by
for the returns, not being genuine, have to be excluded from the canvass. The Comelec does
not thereby encroach on the jurisdiction of the House Electoral Tribunal and
“in effect set aside the election in the precincts covered by the
(manufactured or gun-point) returns” as claimed by petitioner Antonio.
7.
It is the House Electoral Tribunal
that may properly set aside the election in the precincts covered by otherwise
genuine and valid returns, when in a proper electoral contest before it, it
conducts a tally of the valid ballots deposited within the ballot boxes and
finds them at variance with the returns as canvassed. It then sets aside the count of the ballots
per the returns and makes its own count.
This is the proper jurisdiction over election returns of the House
Electoral Tribunal, when in an election contest, it sets aside the results of
the returns and goes by the primary evidence of the ballots themselves.
II
With
twenty-one (21) out of thirty -one (31) returns in five (5) out of six (6)
towns of the entire province of Batanes thus indisputably
determined to be void returns, such that there remain only the returns from the
9 precincts of Basco and from Precinct 4 of Sabtang which may be validly canvassed, representing only
28% of the province’s total registered voters, petitioner Agudo
challenges the jurisdiction and authority of Comelec
to order in the same questioned Resolution the canvassing board to recanvass the results of the election on the basis of such
remaining valid returns and proclaim the winner on the basis thereof.
It is
clear that Comelec does not have the authority to
annul an election nor to direct the holding of a new election.[10]
What is
the jurisdiction and authority, then, of Comelec when
it is confronted with a situation such as in the case at bar where there has
been a failure of election due to the “awesome and appalling”
frustration of the popular will? Mindful as it is of the doctrine that
“where more than one half of the votes cast in a particular election had
been annulled the remainder does not constitute a valid constituency” and
that “to have a representative elected by only one town and one precinct
of another town in a congressional district of six municipalities would be
revolting to the very essence of our system of representative democracy,”[11] does it have the authority
to order the canvassing board nevertheless to proclaim respondent Abad as congressman-elect on the basis of the plurality of
709 votes received by him from the 1,363 recorded votes in the remaining 10
precincts, representing only 28% of the total registered voters of 4,866?
To be
sure, a plurality of valid votes is all that is required in order that a
candidate may win the election, regardless of the actual number of ballots
cast, but this principle is qualified by the important condition that it must
be a plurality of valid votes of a valid constituency. The House Electoral Tribunal as the
“sole judge” of House election contests, has in Soliman
vs. Taruc and Noel v. Soto,[12] annulling the elections
subject of the protests, adopted the doctrine that at least over half of the
total votes of a district must not have been rejected for intimidation or
similar causes in order that there may remain a valid constituency, citing
Hind’s Precedents that “when two-thirds of the returned votes of a
district had been rejected for intimidation, the remainder did not constitute a
valid constituency and (that) there had been no valid election,” and that
“the House declared vacant a seat in a case wherein over half of the total
votes of a district had been rejected for intimidation.”
Here,
more than two-thirds of the returned votes totalling
4,499,[13] had likewise been rejected
for intimidation and coercion of the inspectors, such that the less than
one-third remainder of 1,363 votes did not constitute a valid constituency for
a valid election. The Comelec majority admitted as much, recognizing that
“the remaining returns . . . constitute only 28% of the
constituency.” Dissenting Commissioner Miraflor
gave in addition the figures from the 1953 to the 1967 elections showing therefrom the average percentage of voting in Batanes to be 85% of the registered voters, and remarking
that “(T)he popular will is expressed by such stable and regular
percentages of voting. Applying these
percentages of voting in past elections to the 1969 elections, of the 4,866
registered voters as reported by the election registrars, around 85% or 4,137
would have cast their votes in the 1969 elections. To me, the results of only 10 out of 31
precincts, or of 1,363 votes out of 4,137 possible actual voters, or of 32.94%
of the voters voting is not indicative of the popular will of the people of Batanes.”
Abad would claim that there was a valid constituency claiming that
“there were 946 registered voters who actually voted freely in 19 of the
21 questioned precincts before the armed goons arrived and disrupted the
electoral processes” and “adding 1363 and 946 gives a total of 2,309
qualified electors who were able to validly vote. This is 55.8% or a clear majority of 4,137,
the probable actual voting electors for 1969.”[14] There are several gaps in
this contention: (a) 826 out of these 946 votes cast before the disruption of
the electoral processes by the armed goons were cast in three (3) precincts of Ivana and three (3) precincts of Mahatao
or a total of 6 precincts out of twenty-one (21) precincts where the re -turns
were falsified; in the other fifteen (15) precincts, only 8 to 10 votes were
cast, and the voting was then stopped; (b) all these 946 votes were destroyed
or burned by the armed goons, and it is now impossible to determine for whom
they were cast; they certainly represent a sizeable black more than sufficient
to overcome the-306-vote margin of Abad over his
nearest rival, Agudo, (709 against 403) from the
remaining 1,363 valid votes; and (c) more than two-thirds of the expected 85%
or 4,137 probable voters were prevented from casting their votes or had their
votes nullified (4,137 less 1,363 – 2, 774).
Even if all these 2,774 voters, and not only 946 voters were able to
cast their votes before the forcible disruption of the proceedings and the
taking over of the precincts by the armed goons, Abad’s
contention would be untenable, for it is precisely the blocking and destruction
of the valid votes of said 2,774 voters that nullified the election and left it
impossible to determine the popular will and vote from the remaining less than
one-third 1,363 votes.
Under
the Constitution, members of the House of Representatives “shall be
elected by the qualified electors” from the congressional districts[15] section 160 of the Election
Code’ requires the provincial board of canvassers “as soon as all
the statements are before it . . . to make a canvass of all the votes
cast” and “(U)pon the completion of the
statements . . . proclaim in accordance therewith, who has been
elected to the House of Representatives from each legislative district . . .
“
When 21
returns out of 31 returns in 5 out of 6 towns comprising the province have been
rejected as manufactured gun point returns and the evidence before the Comelec incontestably establishes that the holding of the
election to determine the popular vote and will was frustrated by mass coercion
and terrorism, it was folly on the Comelec’s part to
close its eyes to the hard facts and to require the canvassing board
nevertheless to canvass the remaining ten precincts and fictionally
proclaim respondent Abad with 709 votes as having
received the plurality of the votes of the entire province. As observed by dissenting Commissioner Miraflor, “one town alone, comprising around less than
one-third of the voting population should not be the basis for the election of
an entire province” and the Comelec majority
itself confessed that this was revolting to the very essence of our system of
representative democracy.” In fact, the Comelec
majority in their Resolution urges the House Electoral Tribunal to annul the
election, stating expressly that “(P)erhaps a
proclamation of the Board of Canvassers of the winning candidate, which shows
on its face that it is based on less than one third of the constituency would
be sufficient cue for the House Electoral Tribunal to do, what the Commission
on Elections cannot do because of the limitations of the latter’s powers under
the Constitution.
The Comelec’s lapse is caused by its thinking that it has no
authority to declare, as suggested by Commissioner Miraflor,
that the records of the hearing conducted by it show that ‘There was no
election in Batanes in the sense that the popular
will of the electorate could not be determined and is not reflected in the
valid votes remaining.” This is one step short of annuling
the election and is the logical consequence of the development of our
jurisprudence since Lagumbay, based on Nacionalista Party, decreeing the rejection
of “obviously manufactured returns,’ down to Pacis
authorizing the Comelec to receive evidence aliunde outside of the face of the returns
themselves as to “election returns prepared at the point of a gun”
and to reject such returns, as confirmed in Ilarde,[16] where we held that
“canvass proceedings are administrative and summary in nature, and a
strong prima facie case backed up by a specific offer of the evidence and
indication of its nature and importance has to be made out to warrant the
reception of evidence aliunde and the
presentation of witnesses and the delays necessarily entailed thereby.”
As
expounded in Nacionalista Farjy, “questions of illegal voting and fraudulent
practices are passed on by another tribunal” in the appropriate election
contest; But since here, by indisputabbe evidence and
testimony of the inspectors themselves, more than two-thirds of the returns
were gun-point manufactured returns and no elections were held in the towns
covered thereby and in the 6 precincts where a sizable number of voters voted,
their votes were destroyed[17], the Comelec
cannot but just declare this fact and that no valid constituency has therefore
remained to express the true will of the electorate. If the evidence had shown that the same
massive coercion and manufacture of returns had been done in the 9 precincts of
the remaining town of Basco, thus leaving one single
valid return from a single precinct of Sabtang„ would
not the Comelec have made such a declaration? Be it
10 precincts instead of 1 precinct remaining out of 31 precincts, may be a
matter of impact, but it is no less “revolting to the very essence of our
system of representative democracy.”
What is
the Comelec to do with such a declaration of failure
of the election in Batanes?
Pending
before the House Electoral Tribunal is Electoral Case No. 202 docketing the cautelary protest, filed by respondent Abad
against petitioner Antonio, wherein in a cautelary
resolution of its own dated December 19, 1969, “Ex abundante
cautela the House Electoral Tribunal resolved to
hold in abeyance the final resolution on the urgent ex-parte
motion mentioned above (Antonio’s motion for the preservation and safekeeping
of the election¬ documents) until after the Commission on Elections has
resolved the matter or Matters now pending before it.”[18]
Comelec has properly resolved the matter of the nullity of the proclamation of
Antonio on November 13, 1969, but since it found that there was a failure of
election in the province as the less than one-third of the electorate that was
able to record its votes per the remaining valid returns in the lone town of Basco did not constitute a valid constituency, it should
refrain from any resolution of the equally important matter of non-election
through the sham proclamation ordered by it from the votes of the admittedly
non-valid constituency, but certify the plain fact of failure of election and
forward its records to the House Electoral Tribunal.
It will
of course be asked: with the annulment of Antonio’s proclamation, the cautelary protest of Abad against
him has become moot and academic. This
presents no legal obstacle to the Comelec certifying
the plain fact of failure of election and forwarding its records to the House
Electoral Tribunal, in the docketed case of Abad or
as a separate case. Proclamation of a
winner, under the peculiar circumstances of the case at bar where factually
there has been a failure of election and no winner, is not a condition sine
qua non for the Electoral Tribunal to take cognizance of the Comelec certification and hear all the interested
candidates, particularly, Antonio, Abad and Agudo. In effect,
the Electoral Tribunal will have before it a three-pronged contest, with
Antonio claiming that there was a valid election in the entire province and he
was the winner, Abad claiming in turn there was a
valid election only in the town of Basco and one
precinct in the town of Sabtang and that the
remaining votes recorded therein constituted a valid constituency with himself
as the winner, and Agudo claiming against both that
there was no winner clue to the failure of the election.
The
House Electoral Tribunal, not the Comelec, under the division
of powers between the two agencies made by the Constitution,[19] is the constitutional
agency vested with exclusive jurisdiction to decide the conflicting claims
which present as real an electoral contest as any it has passed upon.
The
House Electoral Tribunal, then, as the constitutional agency entrusted with the
function of “sole judge of all contests relating to the election, returns
and qualifications” of members of the House of Representatives may make
the formal declaration of nullity of the election per the sufficient cue”
given by the Comelec. Or it may choose to disregard its doctrine
that where more than half of the votes cast in an election has been annulled,
the remainder does not constitute a valid constituency and proclaim Abad nevertheless as the winner by a plurality of the
remaining votes, insignificant though they may be and non-expressive of the
will of the electorate of the entire province.
Or it may check the veracity of all the returns themselves in accordance
with its exclusive prerogative by going into the primary evidence of the ballot
boxes and examining the ballots themselves, and verifying whether it could
retrieve a sufficient number of valid ballots to constitute a valid
constituency.
I vote,
therefore, for the affirmance of the Comelec Resolution insofar as it annuls the proclamation
of Rufino Antonio, Jr. with the rejection of the
election returns from the twenty -one Precincts enumerated therein, but vote
for the reversal of the Resolution insofar as it directs the board of
canvassers to recanvass the results of the election
for the lone congressional district of Batanes on the
basis of the remaining returns for nine precincts of Basco
and Precinct 4 of Sabtang and proclaim Jorge Abad as the winner on the basis thereof. The question of whether there remained an
election for which a winner may be proclaimed or whether there was a failure of
election since the remaining returns do not represent a valid constituency
under the prevailing doctrine of the House Electoral Tribunal is one that
pertains to the exclusive jurisdiction of said Tribunal and should be certified
thereto as indicated in the body of this opinion for resolution.
[1]
Antonio Memorandum, p. 8.
[2]
Antonio Memorandum, p. 3, citing Pacis vs. Comelec, L-28455, Feb. 10, 1968; Campos vs. Comelec, L-28439, Dec. 29, 1967; Salcedo
vs. Comelec, L-16360, Jan. 30, 1960; Santos vs.
Comelec, L-16413, Jan. 26, 1960; Espino
vs. Dumlao, L-22325, Dec. 11, 1967; Chiongbian vs. Comelec,
L-19202, Dec. 11, 1961; Cauton vs. Comelec, L-29982, Jan. 9, 1969.
[3] Pacis vs. Comelec, supra,
fn. 2, at p. 390.
[4]
L-28666, May 20, 1969, 28 SCRA 200, 210.
[5]
85 Phil. 149, 157-158 (Dec. 13, 1949).
[6]
L-28955, May 28, 1968, 23 SCRA 883.
[7] Pacis v. Comelec, L-28455, Feb.
10, 1968, 22 SCRA, 539.
[8] Sec.
2, Article X, Constitution of the Philippines.
[9]
L-25467, April 27, 1967, 19 SCRA 911.
[10]
Abel vs. Comelec L-28348, Dec. 15, 1967, 21
SCRA 1252; Borromeo v. Comelec,
L-29369, July 24, 1969, 28 SCRA 775; and Nacionalista
Party vs. Comelec, supra.
[11] Comelec Resolution, pp. 45, 48.
[12]
ETHR Case No. 13 and ETHR Case No. 42 respectively.
[13]
Certificate of Canvass, Annex B-1,
Antonio petition.
[14] Abad Memorandum, pp. 24-25.
[15]
Article V, sec. 5.
[16]
L-31446, January 23, 1970.
[17]
3 precincts of Ivana and 3 precincts of Mahatao, totally 826 votes, Annex A of Annex B of Abad’s Answer in L-31604; Rollo,
pp. 508-509; see Comelec Resolution.
[18] Abad Answer, Annex A, Rollo,
p. 500.
[19]
See Nacionalista Party vs. Comelec,
supra.