TOMATIC ARATUC, SERGIO TOCAO, CISCOLARIO DIAZ, FRED TAMULA, MANGONTAWAR GURO AND BONIFACIO LEGASPI, PETITIONERS, VS. THE COMMISSION ON ELECTIONS, REGIONAL BOARD OF CANVASSERS FO…

Petition in G.R. Nos. L-49705-09 for
certiorari with restraining order and preliminary injunction filed by six (6)
independent candidates for representatives to the Interim Batasang
Pambansa who had joined together under the banner of
the Kunsensiya ng Bayan which, however, was not registered as a political
party or group under the 1978 Election Code, P.D. No. 1296, namely Tomatic Aratuc, Sergio Tocao, Ciscolario Diaz, Fred Tamula, Mangontawar Guro and Bonifacio Legaspi, hereinafter referred to as petitioners, to review
the decision of the respondent Commission on Elections (Comelec)
resolving their appeal from the rulings of the respondent Regional Board of
Canvassers for Region XII regarding the canvass of the
results of the election in said region for representatives to the I.B.P. held
on April 7, 1978.  Similar petition in G.R.
Nos. L-49717-21, for certiorari with restraining order
and preliminary injunction filed by Linang Mandangan, also a candidate for representa­tive in the same
election in that region, to review the decision of the Comelec
declaring respondent Ernesto Roldan as entitled to be
pro­claimed as one of the eight winners in said election.

The instant proceedings are sequels of Our
decision in G.R. No. L-48097, wherein Tomatic Aratuc, et al. sought the suspension of the canvass then
being undertaken by respondent Board in Cotabato City
and in which canvass, the returns in 1,966 out of a total of 4,107 voting
centers in the whole region had already been canvassed showing partial results
as follows:

(Votes
of the independent candidates who actually were not in contention
omitted.)” (Page 6, Record, L-49705-09.)

A supervising panel headed by
Commissioner of Elections, Hon. Venancio S. Duque had conducted hearings of the complaints of the
petitioners therein of alleged irregularities in the election records in all
the voting centers in the whole province of Lanao del
Sur, the whole City of Marawi,
eight (8) towns of Lanao del Norte, namely, Baloi, Karomatan, Matungao, Munai, Nunungan, Pantao Ragat, Tagoloan and Tangcal, seven (7) towns in Maguindanao,
namely, Barrira, Datu Piang, Dinaig, Matanog, Parang, South Upi and Upi, ten (10) towns in
North Cotabato, namely, Carmen, Kabacan,
Kidapawan, Magpet, Matalam, Midsayap, Pigcawayan, Pikit, Pres. Roxas and Tulonan, and eleven
(11) towns in Sultan Kudarat, namely, Bagumbayan, Columbio, Don Mariano
Marcos, Esperanza, Isulan, Kalamansig,
Lebak, Lutayan, Palimbang, President Quirino and Tacurong, by reason of which, petitioners had asked that
the returns from said voting centers be excluded from the canvass.  Before the start of the hearings, the canvass
was suspended, but after the supervisory panel presented its report, on May 15, 1978, the Comelec
lifted its order of suspension and directed the resumption of the canvass to be
done in Manila.  This order was the one assailed in this
Court.  We issued a restraining order.

After hearing the parties, the Court allowed the resumption of
the canvass but issued the following guidelines to be observed thereat:

“1.  That the resumption of
said canvass shall be held in the Comelec main office
in Manila starting not later than June 1, 1978;

“2.  That in preparation therefor,
respondent Commission on Elections shall see to it that all the material
election para­phernalia corresponding to all the voting centers involved in
Election Cases Nos. 78-8, 78-9, 78-10, 78-11 and 78-12 are taken to its main
office in Manila, more particularly, the ballot boxes, with their contents,
used during the said elections, the books of voters or records of voting and
the lists or records of registered voters, on or before May 31, 1978;

“3.  That as soon as the corresponding records are
available, petitioners and their counsel shall be allowed to examine the same
under such security measures as the respondent Board may determine, except the
contents of the ballot boxes which shall be opened only upon orders of either
the respondent Board or respondent Commission, after the need therefor has become evident, the purpose of such
examination being to enable petitioners and their counsel to expeditiously
determine which of them they would wish to be scrutinized and passed upon by
the Board as supporting their charges of election frauds and anomalies,
petitioners and their counsel being ad­monished, in this connection, that no
dilatory tactics should be indulged in by them and that only such records as
would support substantial objections should be offered by them for the scrutiny
by the Board;

“4.  That none of the election returns referred to
in the petition herein shall be canvassed without first giving the herein
petitioners ample opportunity to make their specific objections thereto, if
they have any, and to show sufficient basis for the rejection of any of the
returns, and, in this con­nection, the respondent Regional Board of Canvassers
should give due consideration to the points raised in the memorandum filed by
said petitioners with the Commission on Elections in the above cases dated
April 26, 1978;

“5.  That should it appear to the Board upon summary
scrutiny of the records to be offered by petitioners that there is sufficient
indication that in the voting centers concerned, no election was actually held
and/or that election returns were prepared either before the day of the
election or at any other time, without counting the ballots or with­out regard
thereto or that there has been massive substitution of voters, or that ballots
and/or returns were prepared by the same groups of persons or individuals or
outside of the voting centers, the Board should exclude the corresponding
returns from the canvass;

“6.  That appeals to the Commission on Elec­tions
from rulings of the Board may be made only after all the returns in question in
all the above five cases shall have been passed upon by the Board and; accordingly,
no proclamation shall be made until after the Commission shall have finally re­solved
the appeal without prejudice to recourse to this Court, if warranted as
provided by the Code and the Constitution, giving the parties reasonable time therefor;

“7.  That the copies of
the election returns found in the corresponding ballot boxes shall be the one
used in the canvass;

“8.  That the canvass shall be conducted with
utmost dispatch, to the end that a proclamation, if feasible, may be made not
later than June 10, 1978; thus, the canvass may be terminated as soon as it is
evident that the possible number of votes in the still uncanvassed returns will
no longer affect the general results of the elections here in controversy;

“9.  That respondent Commission shall promulgate
such other directive not inconsistent with this resolution as it may deem
necessary to expedite the proceedings herein contemplated and to accomplish the
purposes herein intended.” (Pp. 8-9, Record.)

On June 1, 1978,
upon proper motion, said guidelines were modified:

“x x x in
the sense that the ballot boxes for the voting centers just referred to need
not be taken to Manila, EXCEPT those of the particular voting centers as to
which the petitioners have the right to demand that the corresponding ballot
boxes be opened in order that the votes therein may be counted because said
ballots unlike the election returns, have not been tampered with or
substituted, in which instances the result of the counting shall be the basis
of the canvass, provided that the voting centers concerned shall be specified
and made known by petitioners to the Regional Board of Canvassers not later
than June 3, 1978; it being understood, that for the purposes of the canvass,
the petitioners shall not be al­lowed to invoke any objection not already
alleged in or comprehended within the allegations in their complaint in the
election cases above-mentioned.” (Page 8, Id.)

Thus, respondent Board proceeded with the canvass, with the
herein petitioners presenting objections, most of them supported by the report
of handwriting and finger-print experts who had examined the voting records and
lists of voters in 878 voting centers, out of 2,700 which they specified in
their complaints or petitions in Election Cases 78-8, 78-9, 78-10, 78-11 and
78-12 in the Comelec. 
In regard to 501 voting centers, the records of which, consisting of the
voters lists and voting records were not available and could not be brought to
Manila, petitioners asked that the results therein be completely excluded from
the canvass.  On July 11, 1978, respondent Board terminated its
canvass and declared the result of the voting to be as follows:

(Pp. 11-12, Record.)

Without loss of time, the petitioners brought the resolution of
respondent Board to the Comelec.  Hearing was held on April 25, 1978, after which hearing, the case was
declared submitted for decision. 
However, on August 30, 1978,
the Comelec issued a resolution stating inter alia that:

“In order to enable the Commission to decide
the appeal properly.

“a.  It will have to go deeper into the examination
of the voting records and registration records and in the case of voting
centers whose voting and registration records which have not yet been submitted
for the Commission to decide to open the ballot boxes; and

“b.  To interview and get statements under oath of
impartial and disinterested persons from the area to determine whether actual
voting took place on April 7, 1978,
as well as those of the military authorities in the areas affected.” (Page 12, Record, L-49705-09.)

On December 11, 1978,
the Comelec required the parties “to file their
respective written comments on the reports they shall periodically receive from
the NBI-Comelec team of finger­print and signature
experts within the inextendible period of seven (7)
days from their receipt thereof”. 
According to counsel for Aratuc, et al.;
“petitioners submitted their various comments on the reports, the principal
gist of which was that it would appear uniformly in all the reports submitted
by the Comelec-NBI experts that the registered voters
were not the ones who voted as shown by the fact that the thumbprints appearing
in Form 1 were different from the thumbprints of the voters in Form 5.”
But the Comelec denied a motion of petitioners asking
that the ballot boxes corresponding to the voting centers the records of which
are not available be opened and that a date be set when the statements of
witnesses referred to in the August 30, 1978 resolution would be taken, on the
ground that in its opinion, it was no longer necessary to proceed with such
opening of ballot boxes and taking of statements.

For his part, counsel for petitioner Mandangan
in G.R. No. L-49717-21 filed with Comelec on December 19, 1978 a Preliminary
Memorandum.  To quote from the petition:

“On December 19, 1978, the KBL, through counsel, filed a
‘Preliminary Memorandum for the Kilusang Bagong Lipunan (KBL) Candidates
on the Comelec’s Resolution of December 11, 1978,’ a xerox copy of which is attached hereto and made a part
hereof as Annex 2, wherein they discussed the following topics:  (I) Brief History of the Present Case; (II)
Summary of Our Position and Submission Before the Honorable Commission; and
(III) KBL’s Appeal Ad Cautelam.  And the fourth topic, because of its
relevance to the ease now before this Honorable Court, we hereby quote for
ready reference:

“IV

“OUR POSITION WITH RESPECT TO THE
RESOLUTION OF THE HONORABLE COMMISSION OF DECEMBER 11, 1978

“We respectfully submit that the Resolution of this case by
this Honorable Commission should be limited to the precincts and
municipalities involved in the KB’s Petitions in Cases Nos. 78-8 to 78-12, on
which evidence had been submitted by the parties, and on which the KB
submitted the reports of their handwriting/finger-print experts.  Furthermore, it should be limited by
the appeal of the KB.  For under the
Supreme Court Resolution of May 23,
1978, original jurisdiction was given to the Board, with appeal to
this Honorable Commission. 
Considerations of other matters beyond these would be, in our humble
opinion, without jurisdiction.

“For the present, we beg to inform this Honorable Commission
that we stand by the reports and findings of the COMELEC/NBI experts as
submitted by them to the Regional Board of Canvassers and as confirmed by the
said Regional Board of Canvassers in its Resolution of July 11, 1978, giving
the 8 KBL candidates the majorities we have already above mentioned.  The Board did more than make a ‘summary
scrutiny of the records’ required by the Supreme Court Resolution, Guideline
No. 5, of May 23, 1978.  Hence, if for
lack of material time we cannot file any Memorandum within the non-extendible
period of seven (7) days, we would just stand by said COMELEC/NBI experts’
reports to the Regional Board, as confirmed by the Board (subject to our appeal
ad cautelam).”

“The COMELEC sent to the parties copies of the reports of the
NBI-COMELEC experts.  For lack of
material time due to the voluminous reports and number of voting centers
involved, the Christmas holidays, and our impression that the COMELEC will
exercise only it appellate jurisdiction, specifically as per resolution
of this Honorable Court of May 23, 1978 (in G.R. No. L-48097), we, the KBL, did
not comment any more on said reports.” (Pp. 5-6, Record,
L-49717-21.)

On January 13, 1979,
the Comelec rendered its resolution being assailed in
these cases, declaring the final result of the canvass to be as follows:

(Page 14, Record,
L-49705-09.)

It is alleged in the Aratuc petition
that:

“The Comelec committed grave abuse
of discretion, amounting to lack of jurisdiction:

“1.  In not pursuing further the examination of the
registration records and voting records from the other voting centers
questioned by petitioners after it found proof of massive substitute voting in
all of the voting records and registration records examined by Comelec and NBI experts;

“2.  In including in the canvass elections returns
from the voting centers whose book of voters and voting records could not be
recovered by the Commission in spite of its repeated efforts to retrieve said
records;

“3.  In not excluding from the canvass returns from
voting centers showing a very high percentage of voting and in not considering
that high percentage of voting, coupled with massive substitution of voters is
proof of manufacturing of election returns;

“4.  In denying petitioners’ petition for the
opening of the ballot boxes from voting centers whose records are not available
for examination to determine whether or not there had been voting in said
voting centers;

“5.  In not identifying the ballot boxes that had
no padlocks and especially those that were found to be empty while they were
shipped to Manila pursuant to the
directive of the Commission in compliance with the Guidelines of this Honorable
Court;

“6.  In not excluding from the canvass returns
where the results of examination of the voting records and registration records
show that the thumbprints of the voters in CE Form 5 did not correspond to
those of the registered voters as shown in CE Form 1;

“7.  In giving more credence to the affidavits of
chairmen and members of the voting centers, municipal treasurers and other
election officials in the voting centers where irregularities had been
committed and not giving credence to the affidavits of watchers of petitioners;

“8.  In not including among those questioned before
the Board by petitioners those included among the returns questioned by them in
their Memorandum filed with the Commission on April 26, 1978, which Memorandum
was attached as Annex ‘I’ to their petition filed with this Honorable Court
G.R. No. L-48097 and which the Supreme Court said in its Guidelines should be
considered by the Board in the course of the canvass (Guidelines No. 4).” (Pp. 15-16, Record, Id.)

On the other hand, the Mandangan
petition submits that the Comelec committed the
following errors:

“1.  In erroneously applying the earlier case of
Diaz vs. Commission on Elections (November 29, 1971; 42 SCRA 426), and
particularly the highly restrictive criterion that when the votes obtained by
the candidates with the highest number of votes exceed the total number of
highest possible valid votes, the COMELEC ruled to exclude from the canvass the
election returns reflecting such results, under which the COMELEC excluded
1,004 election returns, involving around 100,000 votes, 95% of which are for
KBL candidates, particularly the peti­tioner Linang Mandangan, and which rule is so patently unfair, unjust and
oppressive.

“2.  In not holding that the real doctrine in the
Diaz Case is not the total exclusion of election returns simply because the
total number of votes exceed the total number of highest possible valid votes,
but ‘even if all the votes cast by persons identified as registered voters were
added to the votes cast by persons who can not be definitely ascertained as
registered or not, and granting, ad arguendo,
that all of them voted for respondent Daoas, still
the resulting total is much below the number of votes credited to the latter in
returns for Sagada, ‘and that ‘of the 2,188
ballots cast in Sagada, nearly one-half (1,012) were
cast by persons definitely identified as not registered therein, or still
more than 40% of substitute voting which was the rule followed in the later
case of Bashier/Basman (Diaz Case, November 19, 1971,
42 SCRA 426, 432).

“3.  In not applying the rule and formula in the
later case of Bashier and Basman
vs. Commission on Elections (February 24, 1972, 43 SCRA 238) which was the one
followed by the Regional Board of Canvassers, to wit:

‘In Basman vs. Comelec
(L-33728, Feb. 24, 1972) the Supreme Court upheld the ruling of the Comelec in setting the standard of 40% excess votes to
justify the exclusion of election returns. 
In line with the above ruling, the Board of Canvassers may likewise set
aside election returns with 40% substitute votes.  Likewise, where excess voting occurred and
the excess was such as to destroy the presumption of innocent mistake, the
returns was excluded.

(COMELEC’s Resolution, Annex 1 hereof, p.
22),

which this
Honorable Court must have meant when its Resolution of May 23, 1978 (G.R. No. L-48097), it referred to ‘massive
substitution of voters.’

“4.  In examining, through the NBI/COMELEC experts,
the records in more than the 878 voting centers examined by the KB experts and
passed upon by the Regional Board of Canvassers which was all that was within
its appellate jurisdiction; its examination of more election records to make a
total of 1,085 voting centers (COMELEC’s Resolution,
Annex 1 hereof, p. 100), being beyond its jurisdiction and a denial of due
process as far as the KBL, particularly the petitioner Mandangan,
were concerned because they were informed of it only in December, 1978, long
after the case has been submitted for decision in September, 1978; and the
statement that the KBL acquiesced to the same is absolutely without foundation.

“5.  In excluding election returns from areas where
the conditions of peace and order were allegedly unsettled or where there was a
military operation going on immediately before and during elections and where
the voter turn out was high (90% to 100%), and where the people had been asked
to evacuate, as a ruling without jurisdiction and in violation of due process
because no evidence was at all submitted by the parties before the Regional
Board of Canvassers.” (Pp. 23-25, Record, L-47917-21.)

Now, before discussing the merits of the foregoing contentions,
it is necessary to clarify first the nature and extent of the Supreme Court’s
power of review in the premises.  The Aratuc petition is expressly predicated on the ground that
respondent Comelec “committed grave abuse of
discretion, amounting to lack of jurisdiction” in eight
specifications.  On the other hand, the Mandangan petition raises pure questions of law and
jurisdiction.  In other words, both
petitions invoke the Court’s certiorari jurisdiction, not its appellate
authority of review.

This is as it should be. 
While under the Constitution of 1935, “the decisions, orders and
rulings of the Commission shall be subject to review by the Supreme Court”
(Sec. 2, first paragraph, Article X) and pursuant to the Rules of Court, the
petition for “certiorari or review” shall be on the ground that the
Commission “has decided a question of substance not theretofore determined
by the Supreme Court, or has decided it in a way not in accord with law or the
applicable decisions of the Supreme Court” (Sec. 3, Rule 43), and such
provisions refer not only to election contests but even to pre-proclamation
proceedings, the 1973 Constitution provides somewhat differently thus:  “Any decision, order or ruling of the
Commission may be brought to the Supreme Court on certiorari by
the aggrieved party within thirty days from his receipt of a copy thereof”
(Section 11, Article XII c), even as it ordains that the Commission shall
“be the sole judge of all contests relating to the elections, returns and
qualifications of all members of the National Assembly and elective provincial
and city officials” (Section 2 (2)).

Correspondingly, the Election Code of 1978, which is the first
legislative construction of the pertinent constitutional provisions, makes the
Commission also the “sole judge of all pre-proclamation
controversies” and further provides that “any of its decisions,
orders or rulings (in such controversies) shall be final and executory“, just as in election contests, “the
decision of the Commission shall be final, executory
and inappealable.” (Section 193)

It is at once evident from these constitutional and statutory
modifications that there is a definite tendency to enhance and invigorate the
role of the Commission on Elections as the independent constitutional body
charged with the safeguarding of free, peaceful and honest elections.  The framers of the new Constitution must be
presumed to have definite knowledge of what it means to make the decisions,
orders and rulings of the Commission “subject to review by the Supreme
Court”.  And since instead of
maintaining that provision intact, it ordained that the Commission’s actuations
be instead “brought to the Supreme Court on certiorari“,
We cannot insist that there was no intent to change
the nature of the remedy, considering that the limited scope of certiorari,
compared to a review, is well known in remedial law.

Withal, as already stated, the legislative construction of the
modified pertinent constitutional provision is to the effect that the
actuations of the Commission are final, executory and
even inappealable. 
While such construction does not exclude the general certiorari
jurisdiction of the Supreme Court which inheres in it as the final guardian of
the Constitution, particularly, of its imperious due process mandate, it correspondingly
narrows down the scope and extent of the inquiry the Court is supposed to
undertake to what is strictly the office of certiorari as distinguished from
review.  We are of the considered opinion
that the statutory modifications are consistent with the apparent new
constitutional intent.  Indeed, it is
obvious that to say that actuations of the Commission may be brought to the
Supreme Court on certiorari technically connotes something less than
saying that the same “shall be subject to review by the Supreme
Court”, when it comes to the measure of the Court’s reviewing authority or
prerogative in the premises.

A review includes digging into the merits and unearthing errors
of judgment, while certiorari deals exclusively with grave abuse of discretion,
which may not exist even when the decision is otherwise erroneous.  Certiorari implies an indifferent disregard
of the law, arbitrariness and caprice, an omission to weigh pertinent considerations, a decision arrived at without rational
deliberation.  While the effects of an
error of judgment may not differ from that of an indiscretion, as a matter of
policy, there are matters that by their nature ought to be left for final
determination to the sound discretion of certain officers or entities,
reserving it to the Supreme Court to insure the faithful observance of due
process only in cases of patent arbitrariness.

Such, to Our mind, is the constitutional
scheme relative to the Commission on Elections. 
Conceived by the charter as the effective instrument to preserve the
sanctity of popular suffrage, endowed with independence and all the needed concomittant powers, it is but proper that the Court should
accord the greatest measure of presumption of regularity its course of action
and choice of means in performing its duties, to the end that it may achieve
its designed place in the democratic fabric of our government.  Ideally, its members should be free from all
suspicions of partisan inclina­tions, but the fact that actually some of them
have had stints in the arena of politics should not, unless the contrary is
shown, serve as basis for denying to its actuations the respect and
consideration that the Constitution contemplates should be accorded to it, in
the same manner that the Supreme Court itself which from time to time may have
members drawn from the political ranks or even from the military is at all
times deemed insulated from every degree or form of external pressure and
influence as well as improper internal motivations that could arise from such
background or orientation.

We hold, therefore, that under the existing constitutional and
statutory provisions, the certiorari jurisdiction of the Court over orders,
rulings and decisions of the Comelec is not as broad
as it used to be and should be confined to instances of grave abuse of
discretion amounting to patent and substantial denial of due process.  Accordingly, it is in this light that We shall proceed to examine the opposing contentions of the
parties in these cases.

THE MANDANGAN CASE

Being more simple in Our view, We shall
deal with the petition in G.R. No. L-49717-21 first.

The errors assigned in this petition boil down to two main
propositions, namely, (1) that it was an error of law on the part of respondent
Comelec to have applied to the extant circumstances
hereof the ruling of this Court in Diaz vs. Comelec,
42 SCRA 426 instead of that of Bashier vs. Comelec, 43 SCRA 238; and (2) that respondent Comelec exceeded its jurisdiction and denied due process to
petitioner Mandangan in extending its inquiry beyond
the election records of “the 878 voting centers examined by the KB experts
and passed upon by the Regional Board of Canvassers” and in excluding from
the canvass the returns, showing 90 to 100% voting, from voting centers where
military operations were certified by the Army to be going on, to the extent
that said voting centers had to be transferred to the poblaciones,
the same being unsupported by evidence.

Anent the first proposition, it must be made clear that the Diaz
and Bashier rulings are not mutually exclusive of
each other, each being an outgrowth of the basic rationale of statistical
improbability laid down in Lagumbay vs. Comelec and Climaco, 16 SCRA
175.  Whether they should be applied
together or separately or which of them should be applied depends on the
situation on hand.  In the factual milieu
of the instant case as found by the Comelec, We see
no cogent reason, and petitioner has not shown any, why returns in voting
centers showing that the votes of the candidate obtaining the highest number of
votes exceeds the highest possible number of valid votes cast therein should
not be deemed as spurious and manufactured just because the total number of
excess votes in said voting centers were not more than 40%.  Surely, this is not the occasion, considering
the historical antecedents relative to the highly questionable manner in which
elections have been held in the past in the provinces herein involved, of which
the Court has judicial notice as attested by its numerous decisions in cases involving
practically every such election, for the Court to move a whit back from the
standards it has enunciated in those decisions.

In regard to the jurisdictional and due process points raised by
herein petitioner, it is of decisive importance to bear in mind that under
Section 168 of the Revised Election Code of 1978, “the Commission (on
Elections) shall have direct control and supervision over the board of
canvassers” and that relatedly, Section 175 of
the same Code provides that it “shall be the sole judge of all
pre-proclamation controversies.” While nominally, the procedure of
bringing to the Commission objections to the actuations of boards of canvassers
has been quite loosely referred to in certain quarters, even by the Commission
and by this Court, such as in the guidelines of May 23, 1978 quoted earlier in
this opinion, as an appeal, the fact of the matter is that the authority of the
Commission in reviewing such actuations does not spring from any appellate
jurisdiction conferred by any specific provision of law, for there is none such
provision anywhere in the Election Code, but from the plenary prerogative of
direct control and supervision endowed to it by the above-quoted provisions of
Section 168.  And in administrative law,
it is a too well settled postulate to need any supporting citation here, that a
superior body or office having supervision and control over another may do
directly what the latter is supposed to do or ought to have done.

Consequently, anything said in Lucman
vs. Dimaporo, 33 SCRA 387, cited by petitioner, to
the contrary notwithstanding, We cannot fault respondent Comelec
for its having extended its inquiry beyond that undertaken by the Board of
Canvassers.  On the contrary, it must be
stated that Comelec correctly and commendably
asserted its statutory authority born of its envisaged constitutional duties vis-a-vis the preservation of the purity of elections and
electoral processes and procedures in doing what petitioner claims it should
not have done.  Incidentally, it cannot
be said that Comelec went further than even what Aratuc, et al. have asked, since said complainants had
impugned from the outset not only the returns from the 878 voting centers
examined by their experts but all those mentioned in their complaints in the
election cases filed originally with the Comelec
enumerated in the opening statements hereof, hence respondent Comelec had that much field to work on.

The same principle should apply in respect to the ruling of the
Commission regarding the voting centers affected by military operations.  It took cognizance of the fact, not
considered by the board of canvassers, that said
voting centers had been transferred to the poblaciones.  And, if only for purposes of pre-proclamation
proceedings, We are persuaded it did not constitute a denial of due process for
the Commission to have taken into account, without the need of presentation of
evidence by the parties, a matter so publicly notorious as the unsettled
situation of peace and order in some localities in the provinces herein
involved that they may perhaps be taken judicial notice of, the same being
capable of unquestionable demonstration. 
(Sec. 1, Rule 129)

In this connection, We may as well, perhaps, say here as later
that regrettably We cannot, however, go along with the view, expressed in the
dissent of our respected Chief Justice, that from the fact that some of the
voting centers had been transferred to the poblaciones
there is already sufficient basis for Us to rule that the Commission should
have also subjected all the returns from the other voting centers of the same
municipalities, if not provinces, to the same degree of scrutiny as in the
former.  The majority of the Court feels
that had the Commission done so, it would have fallen into the error precisely
alleged by petitioner Mandangan about denial of due
process, for it is relatively unsafe to draw adverse conclusions as to the
exact conditions of peace and order in those other voting centers without at
least some prima facie evidence to rely on considering that there
is no allegation, much less any showing at all that the voting centers in
question are so close to those excluded by the Commission as to warrant the
inescapable conclusion that the relevant circumstances found by the Comelec as obtaining in the latter were identical to those
in the former.

Premises considered, the petition in
G.R. Nos. L-49717-21 is hereby dismissed, for lack of merit.

THE ARATUC ET AL. PETITION

Of the eight errors assigned by herein petitioners earlier
adverted to, the seventh and the eighth do not require any extended
disquisition.  As to the issue of whether
the elections in the voting centers concerned were held on April 7, 1978, the
date designated by law, or earlier, to which the seventh alleged error is
addressed, We note that apparently petitioners are not seriously pressing on it
anymore, as evidenced by the complete absence of any reference thereto during
the oral argument of their counsel and the practically cavalier discussion
thereof in the petition.  In any event, We are satisfied from a careful review of the analysis by
the Comelec in its resolution now before Us that it
took pains to consider as meticulously as the nature of the evidence presented
by both parties would permit all the contentions of petitioners relative to the
weight that should be given to such evidence. 
The detailed discussion of said evidence is contained in not less than
nineteen pages (pp. 70-89) of the resolution. 
In these premises, We are not prepared to hold
that Comelec acted wantonly and arbitrarily in
drawing its conclusions adverse to petitioners’ position.  If errors there are in any of those
conclusions, they are errors of judgment which are not reviewable
in certiorari, so long as they are founded on substantial evidence.

As to eighth assigned error, the thrust
of respondents’ comment is that the results in the voting centers mentioned in
this assignment of error had already been canvassed at the regional canvassing
center in Cotabato
City.  Again, We cannot say that in sustaining the
board of canvassers in this regard, Comelec gravely
abused its discretion, if only because in the guidelines set by this Court,
what appears to have been referred to is, rightly or wrongly, the resumption
only of the canvass, which does not necessarily include the setting aside and
repetition of the canvass already made in Cotabato
City.

The second and fourth assignments of error concern the voting
centers the corresponding voter’s record (C.E. Form 1) and record of voting, (C.E.
Form 5) of which have never been brought to Manila because they were not
available.  The record is not clear as to
how many are these voting centers. 
According to petitioners they are 501, but in the Comelec
resolution in question, the number mentioned is only 408, and this number is
directly challenged in the petition. 
Under the second assignment, it is contended that the Comelec gravely abused its discretion in including in the
canvass the election returns from these voting centers and, somewhat alternatively,
it is alleged as fourth assignment that petitioners’ motion for the opening of
the ballot boxes pertaining to said voting centers was arbitrarily denied by
respondent Comelec.

The resolution under scrutiny explains the situation that
confronted the Commission in regard to the 408 voting centers referred to as
follows:

“The Commission had the option of excluding from the canvass
the election returns under this category. 
By deciding to exclude, the Commission would be summarily
disenfranchising the voters registered in the voting centers affected without
any basis.  The Commission could also
order the inclusion in the canvass of these election returns under the
injunction of the Supreme Court that extreme caution must be exercised in
rejecting returns unless these are palpably irregular.  The Commission chose to give prima facie
validity to the election returns mentioned and uphold the votes cast by the
voters in those areas.  The Commission
held the view that the failure of some election officials to comply with
Commission orders (to submit the records) should not prejudice the right of
suffrage of the citizens who were not parties to such official
disobedience.  In the case of Lino Luna vs. Rodriguez, 39 Phil. 208, the Supreme Court
ruled that when voters have honestly cast their ballots, the same should not be
nullified because the officers appointed under the law to direct the election
and guard the purity of the ballot have not complied with their duty.  (cited in Laurel
on Elections, p. 24)” (Pp. 139-140, Record.)

On page 14 of the comment of the
Solicitor General, however, it is stated that:

“At all events, the returns corresponding to these voting
centers were examined by the Comelec and 141 of such
returns were excluded, as follows:

‘SUMMARY

(Page 301, Record.)

This assertion has not been denied by
petitioners.

Thus, it appears that precisely because of the absence or
unavailability of the CE Forms 1 and 5 corresponding to the more than 400 voting
centers concerned in our present discussion, the Comelec
examined the returns from said voting centers to determine their
trustworthiness by scrutinizing the purported relevant data appearing on their
faces, believing that such was the next best thing that could be done to avoid
total disenfranchisement of the voters in all of them.  On the other hand, petitioners’ insist that
the right thing to do was to order the opening of the ballot boxes involved.

In connection with such opposing contentions, Comelec
explanation in its resolution is:

“x x x The commission had it seen fit to so order, could have
directed the opening of the ballot boxes. 
But the Commission did not see the necessity of going to such length in
a proceeding that was summary in nature and decided that there was suf­ficient bases for the resolution of the appeal.  That the Commission has discretion to
determine when the ballot boxes should be opened is implicit in the guidelines
set by the Supreme Court which states that ‘ … the ballot boxes [which] shall
be opened only upon orders of either the respondent Board or respondent
Commission, after the need therefor has become
evident . . . ‘ (guideline No. 3; underscoring supplied).  Furthermore, the Court on June 1, 1978,
amended the guidelines by providing that the ‘ballot boxes for the voting
centers . . . need not be taken to Manila, EXCEPT those of
the particular centers as to which the petitioners have the right to demand
that the corresponding ballot boxes be opened . . . provided that the voting
centers concerned shall be specified and made known by petitioners to the
Regional Board of Canvassers not later than June 3, 1978 . . . .’ (under­scoring supplied). 
The KB, candidates did not take advantage of the option granted them
under these guidelines.” (Pp. 106-107, Record.)

Considering that Comelec, if it had
wished to do so, had the facilities to identify on its own the voting centers
without CE Forms 1 and 5, thereby precluding the need for the petitioners
having to specify them, and under the circumstances the need for opening the
ballot boxes in question should have appeared to it to be quite apparent, it
may be contended that Comelec would have done greater
service to the public interest had it proceeded to order such opening, as it
had announced it had thoughts of doing in its resolution of August 30,
1978.  On the other hand, We cannot
really blame the Commission too much, since the exacting tenor of the
guidelines issued by Us left it with very little elbow room, so to speak, to
use its own discretion independently of what We had ordered.  What could have saved matters altogether
would have been a timely move on the part of petitioners on or before June 3, 1978, as contemplated in Our resolution.  After
all, come to think of it, that the possible outcome of the opening of the
ballot boxes would favor the petitioners was not a certainty — the contents
thereof could conceivably boomerang against them, such as, for example, if the
ballots therein had been found to be regular and preponderantly for their
opponents.  Having in mind that
significantly, petitioners filed their motion for opening only on January 9,
1979, practically on the eve of the promulgation of the resolution, We hold that
by having adhered to Our guidelines of June 1, 1978, Comelec
certainly cannot be held to be guilty of having gravely abused its discretion,
whether in examining and passing on the returns from the voting centers
referred to in the second and fourth assignments of error in the canvass or in
denying petitioners’ motion for the opening of the ballot boxes concerned.

The first, third and sixth assignment of errors involve related
matters and may be discussed together. 
They all deal with the inclusion in or exclusion from the canvass of
certain returns on the basis of the percentage of voting in specified voting
centers and the corresponding findings of the Comelec
on the extent of substitute voting therein as indicated by the result of either
the technical examination by experts of the signatures and thumb-prints of the
voters thereat.

To begin with, petitioners’ complaint that the Comelec did not examine and study 1,694 of the records in
all the 2,775 voting centers questioned by them is hardly accurate.  To be more exact, the Commission excluded a
total of 1,267 returns coming under four categories namely:  1,001 under the Diaz, supra, ruling, 79
because of 90-100% turnout of voters despite military operations, 105 palpably manufactured ones and 82 returns excluded by
the board of canvassers on other grounds. 
Thus, 45.45% of the claims of the petitioners were sustained by the Comelec.  In
contrast, in the board of canvassers, only 453 returns were excluded.  The board was reversed as to 6 of these, and
821 returns were excluded by Comelec over and above
those excluded by the board.  In other
words, the Comelec almost doubled the exclusions by
the board.

Petitioners would give the impression by their third assignment
of error that Comelec refused to consider high
percentage of voting, coupled with mass substitute voting, as proof that the
pertinent returns had been manufactured. 
That such was not the case is already shown in the above specifications.  To add more, it can be gleaned from the
resolution that in respect to the 1,065 voting centers in Lanao
del Sur and Marawi City
where a high percentage of voting appeared, the returns from the 867 voting
centers were excluded by the Comelec and only 198
were included a ratio of roughly 78% to 22%. 
The following tabulation drawn from the figures in the resolution shows
how the Comelec went over those returns center by
center and acted on them individually:

” 90% – 100% VOTING

MARAWI
CITY AND LANAO DEL
SUR

We are convinced, apart from presuming regularity in the
performance of its duties, that there is enough showing in the record that it
did examine and study the returns and pertinent records corresponding to all
the 2775 voting centers subject of petitioners’ complaints below.  In one part of its resolution the Comelec states:

“The Commission as earlier stated examined on its own the
Books of Voters (Comelec Form No. 1) and the Voters
Records Comelec Form No. 5) to determine for itself
which of these election forms needed further examination by the COMELEC-NBI
experts.  The Commission, aware of the
summary nature of this pre-proclamation controversy, believes that it can
decider using common sense and perception, whether the election forms in
controversy needed further examination by the expert based on the presence or
absence of patent signs of irregularity.” (Pp. 137-138,
Record.)

In the face of this categorical assertion
of fact of the Commission, the bare charge of petitioners that the records
pertaining to the 1,694 voting centers assailed by them should not create any
ripple of serious doubt.  As We view this point under discussion, what is more factually
accurate is that those records complained at were not examined with the aid of
experts and that Comelec passed upon the returns
concerned “using common sense and perception only.” And there is
nothing basically objectionable in this. 
The defunct Presidential, Senate and House Electoral Tribunals examined,
passed upon and voided millions of votes in several national elections without
the assistance of experts and “using” only “common sense and
perception”.  No one ever raised any
eyebrows about such procedure.  Withal,
what we discern from the resolution is that Comelec preliminarily
screened the records and whatever it could not properly pass upon by
“using common sense and perception” it left to the experts to work
on.  We might disagree with the Comelec as to which voting center should be excluded or
included, were We to go over the same records Ourselves, but still a case of
grave abuse of discretion would not come out, considering that Comelec cannot be said to have acted whimsically or
capriciously or without any rational basis, particularly if it is considered
that in many respects and from the very nature of our respective functions,
becoming candor would dictate to Us to concede that the Commission is in a
better position to appreciate and assess the vital circumstances closely and
accurately.  By and large, therefore, the
first, third and sixth assignments of error of the petitioners are not well
taken.

The fifth assignment of error is in Our
view moot and academic.  The
identification of the ballot boxes in defective condition, in some instances
open and allegedly empty, is at best of secondary import because, as already
discussed, the records related thereto were after all examined studied and
passed upon.  If at all, deeper inquiry
into this point would be of real value in an electoral protest.

CONCLUSION

Before closing, it may not be amiss to state here that the Court
had initially agreed to dispose of the cases in a minute resolution, without
prejudice to an extended or reasoned-out opinion later, so that the Court’s
decision may be known earlier. 
Considering, however, that no less than the Honorable Chief Justice has
expressed misgivings as to the propriety of yielding to the conclusions of
respondent Commission because in his view there are strong considerations
warranting further meticulous inquiry of what he deems to be earmarks of
seemingly traditional faults in the manner elections are held in the
municipalities and provinces herein involved, and he is joined in this pose by
two other dis­tinguished colleagues of Ours, the majority opted to ask for more
time to put down at least some of the important considerations that impelled Us
to see the matters in dispute the other way, just as the minority bidded for the opportunity to record their points of
view.  In this manner, all concerned will
perhaps have ample basis to place their respective reactions in proper
perspective.

In this connection, the majority feels it is but meet to advert
to the following portion of the ratiocination of respondent Board of Canvassers
adopted by respondent Commission with approval in its resolution under
question:

“First of all this Board was guided by the legal doctrine that
canvassing boards must exercise “extreme caution” in rejecting
returns and they may do so only when the returns are palpably irregular.  A conclusion that an election return is
obviously manufactured or false and consequently should be disregarded in the
canvass must be approached with extreme caution, and only upon the most
convincing proof.  Any plausible
explanation, one which is acceptable to a reasonable man in the light of
experience and of the probabilities of the situation, should suffice to avoid
outright nullification, with the resulting disenfranchisement of those who
exercised their right of suffrage.  (Anni vs. Isquierdo
et al, L-35918, June 28, 1974; Villalon v. Comelec, L-32008, August 31, 1970; Tagoranao
v. Comelec, 22 SCRA 978).  In the absence of strong evidence
establishing the spuriousness of the return, the basic rule of their being
accorded prima facie status as bona fide reports of the results of the count of
the votes for canvassing and proclamation purposes must be applied, without
prejudice to the question being tried on the merits with the presentation of
evidence, testimonial and real, in the corresponding electoral protest.  (Bashier
vs. Comelec, L-33692, 33699, 33728, 43 SCRA 238,
February 24, 1972).  The decisive
factor is that where it has been duly determined after investigation and
examination of the voting and registration records that actual voting
and election by the registered voters had taken place in the questioned voting
centers, the election returns cannot be disregarded and excluded with the
resulting disenfranchisement of the voters, but must be accorded prima facie
status as bona fide reports of the results of the voting for canvassing
and proclamation purposes.  Where the
grievances relied upon is the commission of irregularities and violation of the
Election Law the proper remedy is election protest.  (Anni
vs. Isquierdo et al, Supra).” (P. 59, Record, L-49705-09.)

The writer of this opinion has taken care to personally check on
the citations to be doubly sure they were not taken out of context, considering
that most, if not all of them, arose from similar situations in the very venues
of the factual milieu of the instant cases, and We are satisfied they do fit
our chosen posture.  More importantly,
they actually came from the pens of different members of the Court, already
retired or still with Us, distinguished by their
perspicacity and their perceptive prowess. 
In the context of the constitutional and legislative intent expounded at
the outset of this opinion and evident in the modifications of the duties and
responsibilities of the Commission on Elections vis-a-vis
the matters that have con­cerned Us herein, particularly the elevation of the
Commission as the “sole judge of pre-proclamation controversies” as
well as of all electoral contests, We find the afore-quoted doctrines
compelling as they reveal through the clouds of existing jurisprudence the
polestar by which the future should be guided in delineating and circumscribing
separate spheres of action of the Commission as it functions in its equally
important dual role just indicated bearing as they do on the purity and
sanctity of elections in this country.

In conclusion, the Court finds insufficient merit in the petition
to warrant its being given due course. 
Petition dismissed, without pronouncement as to costs.  Justices Fernando, Antonio and Guerrero who
are presently on official missions abroad voted for such dismissal.

Castro, C.J., files a dissenting opinions.

Fernando, Antonio, Concepcion, Jr.,
Santos, Fernandez, and Guerrero, JJ., concur.

Teehankee, Aquino,
and Abad
Santos, JJ., did not
take part.

Makasiar and Melencio-Herrera, JJ., concur in the
dissenting opinion of C.J. Castro.

De Castro, J., concurs in a
separate opinion.