G.R. No. L-29177. September 30, 1969
ERNESTO VILLALON, PETITIONER, VS. HON. ABUNDIO Z. ARRIETA AND ARTURO SERIÑA, RESPONDENTS.
BARREDO, J.:
These two cases arose from related circumstances connected with
the election for Mayor in the Municipality
of Kibawe,
Bukidnon held on November 14, 1967.
The first (G. R. No. L-29177) is a petition for
certiorari seeking the annulment of the order of the respondent judge dated
April 1, 1968 declaring null and void the proclamation of petitioner as the
duly elected Mayor made by the municipal board of canvassers on March 14, 1968
on the ground that the same was made in excess of the court’s
jurisdiction. The
second (G. R. No. L-29394) is a petition for certiorari and prohibition
purporting to enjoin the respondent Commission on Elections from requiring
delivery to it and investigating and determining the genuineness of the election
returns from Precinct 20 of said municipality with a view to their being used
in the canvass of the votes for mayor, based upon the theory that the Comelec is without authority to review the finding of a
court in a judicial recount regarding the condition of the envelop containing
one of the copies of the election returns.
We sustain the petitioner in the first, We
overrule him in the second.
On November 17, 1967,
respondent Seriña filed with respondent judge a
petition for recount of the votes in Precinct 20. He stated as grounds therefor,
alleged tampering of the returns and discrepancy between the total number of
votes cast in said precinct, as appearing in C. L. Form 40, Minutes of Voting,
on the one hand, and, on the other, the total of the votes cast for all the
candidates for mayor, as appearing in the election returns, the former being
419 and the latter 642, 525 of which were credited to petitioner. This petition was amended on December 7, 1967 to make more
detailed the particulars of the grounds already alleged in the original
petition. Subsequently, on January 12, 1968, a second amendment
of the petition was attempted but this was denied by the court. Meanwhile, on December 17, 1967, petitioner
filed his answer challenging the jurisdiction of the court and alleging
insufficiency of the facts alleged to constitute a “cause of action”
under Section 163 of the Revised Election Law, since the petition, even as
amended, does not allege any discrepancy in the numbers of the votes for the different
candidates for mayor in all the extant genuine copies of the returns and, on
the other hand, any discrepancy thereof with what appears in the minutes of
voting is not a ground for judicial recount.
After proceedings considerably less summary than they should be, on
February 7, 1968, the respondent judge, at first, granted the petition; but,
later, upon motion for reconsideration filed by herein petitioner on February
14, 1967, he reconsidered his previous order and denied the petition on March 13,
1968 ruling thus:
“The pivotal question in this case has definitely been
resolved by the Supreme Court in its decision in the most recent case of Ong vs. Commission on Elections, et al., G. R. No. L-28415,
promulgated on January 29, 1968, fixing a dividing line between the powers of
the board of canvassers and the Commission on Elections on the one hand and
the court of first instance on the other.
The highest tribunal ruled that ‘where before or during canvass or
before proclamation representations are made that returns are falsified, it becomes
the primary duty, first of the board of canvassers and then the Commission on
Elections, to ascertain this fact’; that the latter is clothed with broad constitutional
powers to have the returns corrected in order to secure that only genuine
returns are presented to the board of canvassers for the purpose of canvass
and thus prevent any dastardly attempt to subvert the people’s choice with the
use of patently doctored returns, while the court of first instance is
delimited by section 163 of the Revised Election Code in the exercise of its
authority to order a recount to situations where an authentic copy of the
election returns gives a different number of votes to a candidate from those
appearing in another authentic copy and the difference would affect the result
of the election. It is evident that the
remedy available to the petitioner in the present instance lies with the
Commission on Elections and not with this court because no differences in the number
of votes of the respondent Ernesto Villalon that
would affect the result of the election were found in the available copies of
the election returns. The absence of the
corresponding entry in words as to the number of votes received by said respondent
for the Office of Mayor in the municipal treasurer’s copy of the election
statement may not be considered a discrepancy within the context of the law sufficient
enough to warrant the application of Section 163 of the Code.”
On March 14, 1968,
allegedly even before respondent Seriña had received
copy of the order of denial, the municipal board of canvassers proclaimed
petitioner Ernesto Villalon as the duly elected
mayor. This caused the filing of an
omnibus motion for contempt against the members of the municipal board of
canvassers and for annulment of said proclamation by respondent Seriña, and the subsequent issuance by respondent judge of
the disputed order of April 1, 1968,
denying the said prayer for contempt but granting that for annulment of the
proclamation. A motion for the
reconsideration of this order was filed on April 8, 1967, but the same was denied on June 4, 1968. On June
29, 1968, the present first petition was filed.
Petitioner assails the order of April 1, 1968 insofar as the annulment declared by it is
concerned as having been issued without or in excess of jurisdiction. Petitioner is right.
The only reason given by respondent judge in support of his order
is that the proclamation “was premature because (the order of March 13)
had not yet become final as the petitioner had not yet even been notified
thereof on March 14, 1968.”
Such reason is erroneous. It is in the
very nature of a proceeding for judicial recount of votes in an election that
orders disposing of the petition by either granting the petition and
accordingly proceeding to the actual recount or denying the same, as well as
the order certifying the result of the recount, should not be appealable. This
Court has already held that there is no appeal therefrom
(Sanidad vs. Saquing, 23
SCRA, 878, 880). If at all, only
questions of jurisdiction and of law may be brought to the Supreme Court in
appropriate instances by certiorari, prohibition or mandamus with a request for
the issuance of the corresponding writ of preliminary injunction, if
necessary. The procedure has been made
summary precisely to accomplish its purpose of aiding the electoral authorities
in ascertaining the apparent results of an election exclusively for purposes of
proclamation without unnecessary loss of time and without prejudice to the
final outcome of a full-dressed determination of the true result of the
election thru an election contest. As
this Court indicated in Ong vs. Comelec,
22 SCRA 241, judicial recounts must be speedily terminated in order not
“to prolong the periods during which the contested positions will remain
without an occupant, thereby provoking suspicion, conjecture and unrest.”
This Court emphasized this to these same parties now before Us in Seriña vs. Court of First Instance of Bukidnon,
a previous case involving practically the same facts as here:
“x x x It is
not amiss to state, however, that respondent court, its the exercise of its
limited jurisdiction under either Section 163 or 168 of the Revised Election
Code as the case may be, should dispose of the matter with promptness and
dispatch. That would assure that the
proclamation would not be unduly delayed.
It is equally relevant to state that under such circumstances there
should not be on the part of the judiciary timidity and hesitancy in lending
its approval to pleas from any party before it, if thereby the true and honest
result of the elections could be elicited.
That would enable the provincial or municipal board of canvassers to
discharge its function in the shortest possible time and with the utmost degree
of accuracy.” ( 24 SCRA 715, 719.)
Indeed, this aspect of the electoral process could as well be
performed by Comelec officials or other public officials
designated by that body or by law, and the only reason why it has been given to
the courts seems to be just to impress solemnity and dignity to its result
which may serve as the basis of a temporary color of title to an elective
office, without implying that the courts should follow the usual cumbersome and
complicated procedure of a judicial proceeding, since, after all, what is
contemplated is more of a mechanical process rather than one requiring the
exercise of judgment and discretion. In Albano vs. Provincial Board of Canvassers of Isabela, 5 SCRA 13, 18-19, this Court said:
“It is well to emphasize once again that the authority given
to a court of first instance to allow the recount of votes under Section 163 of
the Revised Election Code is restrictive in nature. The law is explicit that
the proceeding is summary in character and merely consists in the mathematical
counting of the votes received by each candidate. It does not involve any appreciation of the
ballots or determination of their validity as is required in an election
contest. Its only purpose is to count
the number of votes as they appear in the face of the ballots. (Cawa, et al. v.
Hon. Vicente del Rosario, et al., G. R. Nos.
L-16837-40, May 30, 1960.)
Thus, as this Court has aptly said: ‘The purpose of the law is to offer a
prompt relief to a simple controversy, that can immediately be settled through
a summary judicial proceeding that may dispense with the long drawn and
complicated proceedings of a full-dressed election contest and, at the same
time, x x x to restore
public tranquility by dispelling all doubts as to the true number of votes cast
in a given precinct. Legal technicalities
should be used to help in arriving at a clear intention of the law and not to
defeat said intention’. (Board of Election Inspectors vs. Piccio,
81 Phil. 577. See also Cawa, et al. vs. Hon. Vicente del
Rosario, et al., supra.) (Italics supplied) Verily, in this instance, legal
technicalities were applied to defeat the purpose of the law.”
The case at bar is not the first one where the matter of a
judicial recount has remained pending without final resolution by the courts
far beyond the beginning of the term of office being contested. It must be admitted that such a situation is
not only undesirable; it is inconsistent with the intent and spirit of the
law. Truth to tell, even a full blown
electoral contest could have been terminated within a shorter period since the
elections of 1967; which is absurd, to say the least.
A judicial recount is not an action. It is not, strictly speaking, even a special
proceeding. It is a part of the
electoral administrative process preparatory to the canvass and proclamation of
the results of an election. The fact
that it is performed by the Court of First Instance does not make of it a
purely judicial proceeding. Only that
aspect of it wherein the court determines whether or not the requirements of
the law for a recount are present is judicial.
(Binging Ho vs. Municipal Board of Canvassers of Bongao, Sulu, et al., G. R. No.
L29051, July 28, 1969.)
The exact procedure to be followed after the proper motion is filed is
prescribed neither in the election law nor in the rules of court. The law merely lays down three requisites for
the exercise of jurisdiction by the court, namely, (1) there must be a
discrepancy between authentic copies of the election returns from a precinct
in the number of votes given to a candidate and the difference affects the
results of the election; (2) a motion must be filed by the board of canvassers
or by any candidate affected; and (3) notice of the proceeding shall be given
to all the candidates affected. These
three requisites complied with, the law evidently
leaves it to the court to devise the means for the exercise of its powers and
the performance of its assigned role in the manner which may appear to it to be
most consistent with the fundamental purpose of the proceeding. The practice of some judges of requiring
pleadings to be filed within specified periods and holding pre-trials is
definitely outside of the contemplation of the law. It is not conformable to its spirit. (Sec. 6, Rule 135)
Barring unusual and inevitable circumstances, this kind of
proceedings should consume hut a number of days, if not hours. All that the judge has to determine is
whether the copies of the genuine election returns submitted to it, tally with
each other or not, as to the votes of the candidates concerned, and if they
don’t, he should promptly proceed to have the corresponding ballot box brought
to the court and opened and then count the votes of the candidates for the
office in question as they appear on the face of the ballots found therein
without in any manner applying the rules on appreciation of ballots and without
passing on their validity, which are matters that should be reserved for an
election contest. (Cava
et al. vs. Del Rosario, G. R. No. L-16837, May 30, 1960; Samson vs. Estenzo, 106 Phil. 1140.)
It is obvious that such a simple function can be performed and finished in a
very short time.
These considerations are equally persuasive against allowing any
appeal from the court’s orders in the premises.
As already stated, the purpose of the proceeding is the prompt if not
immediate solution to a problem related to the proclamation of the apparent
winner in an election which as a rule must be made before the term of the
contested office begins, and the matter placed before the judge for action is
so simple that from the very nature of the action the court is required to
take, the principal ingredient of review 9 thereof by a higher court is
wanting, namely, the element of finality in the consequences of the
pronouncements the judge is called upon to make, considering that whatever be
the outcome of the recount and the resolutions of the court in the course
thereof as well as the subsequent canvass based thereon may still be reopened
and passed upon in the ensuing electoral contest should there be any. In other words, whatever resolution the court
may make therein can at best have only provisional legal consequences, not in
any way controlling in the eventual electoral protest case that may follow.
For all the foregoing considerations, We hold that respondent
judge erred in holding albeit impliedly that his order of April 1, 1968,
denying the petition for recount of herein respondent had any period of
finality before it could be executed.
We further hold that such kind of order is immediately executory and the only way to stop its implementation or
compliance is thru an order of a higher court in an appropriate special remedy
as above indicated. Otherwise stated,
it is the holding of this Court that immediately after a recount of votes has
been made and certified by the Court of First Instance pursuant to Section 163
and 168 of the Revised Election Code, or after it has issued an order of denial
of the petition for such a recount, the court becomes functus
oficio and is henceforth powerless to issue
any order in connection therewith except, perhaps, such as will insure the
expedient effectuation of its basic order.
It is, therefore, sufficient answer to respondent Seriña’s contention to the effect that respondent judge’s
annulment order is merely a consequence of the writ of preliminary injunction
issued by the latter upon the filing of the petition for recount to say that
said writ lost its force and effect upon the issuance of the order denying the
petition, not only because respondent judge did, in fact, declare in the same
order that the said “writ of preliminary injunction issued by the (this)
Court shall be automatically dissolved”, which dissolution is in itself
immediately executory, but also because being a mere
auxiliary remedy to the main petition, it could not have survived beyond the
life of such principal remedy.
With regard to the same respondent’s contention in his answer
that the proclamation in question was null and void because it was made in
violation of a Comelec resolution of December 20,
1967 ordering the suspension of said proclamation until further orders of the
Commission, and none such has come, it must be clarified that the two proceedings,
the one before the respondent judge and that be fore the Comelec
are distinct and separate ones. As a
matter of fact, the respondent judge did not base his order of annulment on the
Comelec resolution but on the theory alone that his
order of denial of March 13, 1968
had not yet become final. Indeed, this
could have been due to the fact that this point was not raised in the court
below, and it is doubtful if it can be raised for the first time in this
certiorari. In any event, the Comelec has broad powers to enforce its own injunctions by
its own fiat and it would be less productive of confusion and conflict of
authority for the courts to keep off where the Comelec
has already assumed its jurisdiction.
After all, it bears repeating here, the authority of the courts under
Section 163 of the Revised Election Code is strictly limited only to the
recount of the votes, if the requisites therefor
appear to it to be existent, and whether or not its certification of the results
of the recount will be utilized properly by the election officials is entirely
another matter which, if necessary, has to be the subject of another entirely
distinct proceeding.
Coming now to the second petition before Us, We do not find any
plausible legal basis therefor. Petitioner seeks to enjoin the Comelec from investigating the election returns for
Precinct 20, the same one subject of the first petition disposed of above,
allegedly because the Court of First Instance of Bukidnon
had already made an adverse finding as to its integrity. To start with, it is to be noted that petitioner’s
pose is quite inconsistent. The order of
the Court of First Instance of Bukidnon, which
according to petitioner, found “that the Provincial Treasurer’s copy of
the election returns for Precinct No. 20 of Kibawe, Bukidnon, was spurious and of doubtful origin for the
reason that it was found only inside the mail box of Malaybalay,
Bukidnon, on December 9, 1968, long after the
canvassing of votes for and the proclamation of the Provincial Officials of Bukidnon in the last elections” was made in the
court’s order of January 17, 1968. Said
order was issued only as a preliminary step to the recount sought by respondent
Seriña.
Petitioner knows very well, however, that precisely upon his own motion,
the order of February 7th which granted the petition for recount, was
reconsidered and set aside in the order of March 13, 1968, which upheld petitioner’s contention that
the court had no authority to make the recount requested. It is not clear to Us,
how petitioner can base his challenge against the Comelec’s
actuation on a proceeding he has successfully challenged to have been conducted
without jurisdiction. The order of
January 17th was a denial of a motion to reconsider a previous order of the
court denying, in turn, an earlier motion of respondent Seriña
asking for production of the envelope containing the copy of the return
intended for the Provincial Treasurer in order to be used in the determination
of discrepancy among the genuine copies of the returns, and as the recount was
ultimately denied by the court, for want of jurisdiction, it logically follows
that whatever finding the court had made in the process should lose any legal
significance. We hold that inasmuch as
the finding relied upon by petitioner was made in an order which was merely
preparatory to a judicial recount which could not be held because the court was
without jurisdiction or would have acted in excess of its jurisdiction, the
same cannot serve any legal purpose, since in law, it is devoid of any existence
whatsoever. Incidentally, the point
raised by petitioner regarding the effect of the failure of the parties to
take any appeal from the order of January 17th deserves scant consideration,
for the simple reason that the said order was at best interlocutory and
whatever legal significance it might have had was completely absorbed in the
final result of the proceedings.
Accordingly, the main basis of the present petition against the Comelec must fall.
Moreover, it cannot be overemphasized that proceedings under
Section 163 of the Revised Election Code are exclusively for purposes of the
recount therein requested only, hence any ruling of the Court made in the
course thereof cannot have the effect of res adjudicata upon proceedings for any other purpose
whether in court or in the Comelec. This is perhaps even more true with respect
to the Comelec, in so far as the genuineness of the
returns are concerned, because in Ong vs. Comelec, supra, it was held that the investigation
of this matter pertains peculiarly to the province of the Comelec. We reiterate that:
“3.
Appropriately to be drawn then is the line that divides the
powers of the boards of canvassers and the Comelec,
on the one hand, and the Court of First Instance, on the other. We are unprepared to say that the election
law intended that where, in a given precinct, some of the returns are authentic
and others are falsified, both the Comelec and the
Court of First Instance will have concurrent jurisdiction – prior to
proclamation. Such procedure breeds
confusion. It detracts so much from the
powers granted the boards of canvassers and Comelec
to proceed with dispatch with the work of canvassing and proclamation.
“Where before or during canvassing or before proclamation
representations are made that returns are falsified, it becomes the primary
duty, first of the board of canvassers, and then of the Comelec,
to ascertain this fact.
“If finally the Comelec summarily
finds that there was falsification of the copies to be used for canvassing
purposes, then canvassing must be made upon the basis of authentic copies. Because a falsified return
or spurious return amounts to no return at all.
“If, on the other hand, the discrepancy in the returns was
the result of honest mistakes of the board of inspectors, two courses of
action are open in the court of first instance:
(1) a petition for correction of returns with the consent of all the
members of the board of inspectors under Section 154 of the Revised Election
Code [Section 154, Revised Election Code, reads: ‘Alterations the statement.- After the
announcement of the result of the election in the polling place, the board of
inspectors shall not make any alteration or amendment in any of its statements,
unless it be so ordered by a competent court.’ Unanimity of the board of
inspectors has long been considered to be a requisite to correction under this
provision. Estrada vs. Navarro, L-23340
& L-28374, December 29, 1967,
and cases cited therein.] and (2) a petition by the
said board or any candidate affected for summary judicial recount under
Sections 163 and 168 of the same Code.”
Earlier, in Caution vs. Comelec, We
ruled:
“Where the election returns produced by the provincial
treasurer have been shown to have been tampered, and all the other copies
outside the baIlot box have also been shown to have
been tampered or falsified, it is certainly within the power of the Commission
on Elections to issue such order as would ascertain the existence of the
genuine, authentic and untampered election returns,
and thus open the way for the summary recount of the votes, in accordance with
law, for the purposes only of the canvass of the votes and the proclamation of
the candidate found to have obtained the highest number of votes.
“The purpose of the Revised Election Code is to protect the
integrity of elections and to suppress all evils that may violate its purity
and defeat the will of the voters. x x x 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 x x x x.”
The present case comes squarely within the scope of the powers of
the Comelec thus defined and explained. To be clearer, should it happen that the Comelec discovers a discrepancy between the returns already
examined by the court, on the one hand, and any other genuine copy thereof not
yet brought to the court, on the other, the Comelec
may require the parties concerned to request for a judicial recount in spite
of a previous order of denial thereof on the basis only of the formerly extant
copies.
Finally, in the case of Chiongbian
vs. Comelec, G. R. No. L-19202, February 20,
1962 (decided by resolution), this Court did hold that when there is evidence
that the ballot box and the ballots therein have been tampered prior to a
judicial recount, the recount even if conducted already may be disregarded in
favor of the contents of genuine copies of the returns before the court. We make it clear, however, that the finding
of tampering by the court therein served no other end than to make the recount
prayed for pointless, but such finding could not have any binding effect or any
legal significance in the ensuing electoral protest.
WHEREFORE, the petition for certiorari
in G. R. No. L-29177 is granted and the order of respondent judge of
March 14, 1968 declaring null and void the proclamation of petitioner Villalon as the elected mayor of Kibawe,
Bukidnon, is hereby annulled and set aside, without
prejudice to whatever action may be taken by the Comelec
or any steps the interested parties may wish to initiate in regard to the Comelec resolution ordering the suspension of the canvass
of the votes for mayor of said municipality, but the petition for certiorari
and prohibition in G. R. No. L29394 is hereby dismissed, with costs against
respondent Seriña in the first case and against
petitioner Villalon in the second case.
Concepcion, C.J., Dizon,
Makalintal, Zaldivar, Ruiz Castro,
Fernando, Capistrano, and Teehankee, JJ., concur.
Sanchez and Reyes, JBL, JJ., on official leave of absence.