G.R. No. L-31374. January 21, 1970
REP. FELIPE J. ABRIGO, PETITIONER, VS. THE COMMISSION ON ELECTIONS, HON. FELIX T. CARO, AS PRESIDING JUDGE OF THE COURT OF FIRST INSTANCE OF SAMAR, BRANCH VIII, THE PROVINCIAL …
SANCHEZ, J.:
Upon the averment that the copies for the municipal treasurer of
Oras, Eastern Samar, of the
election returns – in so far as they affect the office of Congressman – from
precincts 9, 9-A, 12, 15, 16, 17, 18-A, 21-A and 22 have been falsified to show
that in those precincts petitioner Felipe J. Abrigo
obtained only 49 votes and respondent Vicente O. Valley 885 votes, contrary to
the genuine returns which show 417 votes for petitioner and 463 for respondent;
that the ballot boxes corresponding to said precincts have been tampered with;
that the provincial board of canvassers had so far advanced in the counting of
the votes that it would appear that petitioner was the winner in that election,
petitioner went to this Court on December 22, 1969[1]
on certiorari, prohibition and mandamus with prayer to stop
respondent judge from further proceeding with the petition for recount of votes
in the precincts mentioned lodged by respondent Vicente O. Valley in Election
Case No. 42 of the Court of First Instance of Eastern Samar;[2]
to nullify the preliminary injunction issued by respondent judge in said case
directing the provincial board of canvassers to desist and refrain from
proclaiming petitioner as Congressman elect; to annul the resolution of the
Commission on Elections (Comelec) dated December 18,
1969 directing said canvassing board to refrain from proclaiming the winning
candidate; and to direct petitioner’s proclamation, further averment having
been made that the terms of Congressmen would start on December 30, 1969. We issued a cease-and-desist order against
respondent judge.
From the averments of the petition and the returns thereto and
the statements made at the hearing on oral arguments on January 12, 1970
together with the documents presented, following are the facts:
Amongst the registered candidates for the congressional seat of
the lone district of Eastern Samar during the 1969
elections are Felipe J. Abrigo, petitioner, and Vicente
O. Valley,
private respondent.
Forming the backdrop of the dispute are the events subsequent to November 11, 1969, the day of the
election.
The canvass of the election returns by the provincial board of
canvassers of Eastern Samar
was started on November 26, 1969
in the Philippine Constabulary barracks at Camp
Acedillo in Borongan, the provincial capital.
During the board’s meeting on November 29 and December 1, 1969,
respondent Valley called the attention of the board that for precincts 9 of the
municipality of Hernani, and 5-A, 9, 9-A of Oras, their “record” showed a different result
from that of the provincial treasurer’s copy of the returns then being used by
the board. This “record”
turned out to be the certificate of votes by precinct purportedly issued by the
board of inspectors to the respective watchers of the candidates. As this was not an election return, much less
an authentic copy of the election return required by Section 163 of the Revised
Election Code, the board conditionally suspended the canvass of the questioned
returns until December 3, 1969
so that Valley could produce the contradictory authentic copies of those
returns or such other returns as might be similarly questioned.
On December 4, 1969,
Comelec, at petitioner’s behest, directed that the
canvass be transferred to Manila.
On December 5, 1969,
respondent Valley presented to Comelec a petition to
authorize the board to use the municipal treasurer’s copies of the questioned
election returns and for this purpose to order the municipal treasurers of the
municipalities involved to produced before the board their election return
copies. The petition listed the
following returns and the respective objections thereto: (a) Precinct 5-A, Oras – the name and votes of Valley were omitted in the
copy for the provincial treasurer but the certificate of votes issued by the
inspectors to Valley’s watchers showed that he obtained 42 votes; (b) Precinct
9, Oras – the provincial treasurer’s copy showed that
Abrigo got 26 votes and Valley 67 votes but the
certificate of votes gave Abrigo 6 votes and Valley
87 votes; (c) Precinct 9-A, Oras – the provincial
treasurer’s copy credited Abrigo with 34 votes and
Valley 51 votes but the certificate of votes listed 4 for Abrigo
and 81 for Valley; and (d) Precinct 9, Hernani – in
the provincial treasurer’s copy Abrigo was credited
with 47 votes but in the certificate Abrigo only had
27 votes.
On the same day, December 5, Valley was granted by Comelec, in a telegraphic order to the municipal treasurer
of Oras quoted below, the authority to photograph the
municipal treasurer’s copy of the questioned election returns:
“Pursuant Commission resolution of Dec 5 1969 cma be advised that candidate Vicente O Valley is
authorized to take photograph copies of all election returns of that mun cma copy for the mun treas cma
which photograph shall take place in your office during regular hours and after
providing notice to all heads of political
parties and congressional candidates cma who may witness the taking of photographs pd in this
connection cma you are authorized to open the special
envelope containing the election return intended for the mun
treas and break the seals of the envelopes and the return
itself smcln and that the proceedings in connection
herewith shall be recorded and attested to by your witnesses and
representatives of congressional candidates pd in no case shall the election
return copy for mun treas
be taken out of your office for the above purposes and if situation tense cma you may request the provl
commander or local police authorities to provide you with necessary security
during the taking of photographs smcln you shall take
all necessary precaution for the preservation said election return pd par wire
rush compliance hereof attn Law Dept.”[3]
The photographing was done in the morning of December 10 at the
office of the municipal treasurer.
Neither petitioner nor anyone in his behalf was present thereat, because
the treasurer’s notice which was sent on December 9 was received by petitioner
only on December 11.
At the meeting of the canvassing board at the Comelec
office in Manila on December 9,
disagreement cropped up between representatives for petitioner and respondent
Valley over the canvass of the questioned returns. On advice of Comelec
supervisor,Atty. Adolfo Alagar, the meeting was adjourned to enable him to refer
the question to Comelec. In the afternoon of the same day, Atty. Alagar presented before the board Comelec
resolution instructing the board, thus:
“1. If the provincial
treasurer’s copy of any particular return is clean on its face and does not
show any sign of alteration or tampering, the same should be included in the
canvass by the Board. Resort to other
copies of said returns is not necessary;
2. Should any candidate
question the inclusion of said returns on other grounds, such as that although
said returns are clean, they have been prepared under duress or “gun
point”, the Board shall note said objections but nonetheless include said
returns in the canvass. The adverse
party may, however, at the end of the canvass, appeal to the Commission from
the ruling of the Board including said returns in the canvass;
3. Individual appeals
from each ruling of the Board will not be countenanced by the Commission. Therefore, all appeals or petitions for
review by any of the parties on the ruling of the Board should be elevated only
after the determination of the canvass and said appeals should be consolidated;
4. In case there are
questions involving the inclusion or exclusion of any return, the Board shall
desist from proclaiming the winner to give an opportunity to the parties to
elevate their exceptions or appeals from the ruling of the Board to the
Commission; and
5. The Board shall
follow strictly Resolution No. RR-650 of the Commission dated September 4, 1969, except as herein
modified.”
The board then continued with the canvass on the same day,
December 9, and on December 10, 11 and 12, 1969. On December
12, 1969, the canvass was concluded, except for precinct 5-A of Oras where the parties agreed to defer the tally because
the name of Valley as well as the votes received by him were
not recorded in the return.
Representatives for Valley asked that they be given time to present the
photographs of the copies for the municipal treasurer of all the returns
questioned by them. The Comelec representative decided to adjourn the meeting in
order to give Valley a chance to raise the issue on the questioned returns to Comelec. The
tabulated result which does not in included the 42 votes for Valley in precinct
5-A of Oras was a follows: Felipe J. Abrigo –
23,389 votes; Vicente O.
Valley – 23,103 votes; Jose T.
Ramirez –8,319 votes; Remigio Sabulao
– 50 votes; and Honor Moslares -10 votes.
The corresponding statements of votes in each municipality were
signed by all the members of the board,[4]
except that for the municipality of Oras the following three
members did not sign: Vice-Governor
Federico Mengote and board members Fernando Lugay and Galo Alvor, Jr. The
apparent reason being that the returns for the provincial treasurer from
precincts 9-A, 12, 15, 16, 17, 18-A, 21-A and 22 were disputed due to the
alleged discrepancy with the corresponding returns for the municipal treasurer;
and that as to precinct 5-A the name of Valley and the votes obtained by him
were omitted.
The certificate of canvass and proclamation of petitioner was
also prepared. Here, four members signed
the certificate, namely: Governor Victor
Amasa, board member Celestino
Sabate, Highway District Engineer Benito Ramos and
District Health Officer Faustino Reyes.
The other four members did not sign, namely: Provincial Fiscal Vicente Ramirez,
Vice-Governor Federico Mengote, board members
Fernando Lugay and Galo Alvor, Jr.
The deadlocked board thus adjourned and set the next hearing for December 15, 1969.
Meanwhile, on December 13, respondent Valley went to the Court of
First Instance of Eastern Samar on petition dated
December 11 (Election Case 42 heretofore mentioned), for a recount of votes
cast in the nine precincts (9, 9-A, 12, 15, 16, 17, 18-A, 21-A and 22) of Oras aforestated.
On December 15, 1969, respondent Valley did two things: (1) He
presented before the canvassing board photographs of the municipal treasurer’s
copies of the questioned returns from the precincts just enumerated; and (2) he
obtained from the Court of First Instance of Eastern Samar,
upon the basis of the photographs of the municipal treasurer’s returns from
said precincts, the disputed writ of preliminary injunction directing the board
to refrain from proclaiming Abrigo as the
Representative-elect of Eastern Samar. At the hearing on oral arguments before this
Court on January 12, 1970,
respondent judge manifested that it was after he issued the injunctive writ
that he went on leave of absence for medical check-up.
On December 22, 1969,
petitioner Felipe Abrigo, upon learning of the
preliminary injunction just mentioned, filed before
this Court the present petition for certiorari, prohibition and mandamus
against the presiding judge of the Court of First Instance of Eastern Samar and Vicente
O. Valley.
Subsequently, petitioner received the telegraphic order of Comelec dated December
18, 1969, viz:
“Be advised that Commission acting on writ of preliminary
injunction issued in connection with Election Case No 42 (Valley vs Abrigo and provl
bd canvassers) resolved as follows cln (1) that Commission proceed with scheduled hearing on
Dec 23 1969 insofar as those returns not involved in judicial recount are
concerned smcln and (2) in the meantime provl bd canvassers is hereby
ordered not to make any proclamation until further orders from
Commission.”[5]
On January 2, 1970,
in pursuance of the resolution of this Court of December 22, 1969, petitioner
amended his petition to include as party respondents Comelec,
the provincial board of canvassers of Eastern Samar,
and the municipal treasurer of Oras, Eastern
Samar.
Meanwhile, on December 23, 1969, Comelec
heard respondent Valley’s petition of November 5 heretofore adverted to, to use
the municipal treasurer’s copies in place of the questioned copies of the
provincial treasurer, and made the following rulings: (1) as to precincts 1, 2,
3 and 4 of Arteche, Comelec
overruled respondent Valley’s objection that all the returns were prepared by a
single person, after a finding by the NBI that the returns were not prepared by
a single hand; (2) as to precinct 5-A of Oras, the
board of inspectors of said precinct having wired Comelec
that they inadvertently omitted to write 42 votes for Valley, Comelec deferred the disposition of the return therefor so that the board of inspectors could file a
petition for correction; (3) as to precinct 9 of Hernani,
respondent Valley verbally withdrew his objection; and (4) as to precinct 4 of
Salcedo wherein the entry of votes for the
congressional candidates appearsto have been crossed
out by a single diagonal line, Comelec directed the
taking of depositions of the members of the board of inspectors.
The case is now before us for decision.
It is conceded on both sides that the difference in the number of
votes from the nine precincts, the subject of the recount petition, as
appearing in the copies of the returns for the municipal treasurer, on the one
hand, and that recorded in the originals of said returns for the Comelec and the carbon copies thereof for the provincial
treasurer, on the other (which last two are both confirmed by the copies for
the Nacionalista Party and the affidavit of the
chairman of the Liberal Party), is decisive of the result of the election for
Congressman.
The crucial issue is this:
Can the Court of First Instance validly act upon a petition for recount
under Section 163 of the Revised Election Code, absent an averment that the
canvassing board or Comelec has found a discrepancy
between two authentic copies of the election returns and upon mere presentation
of photographs of copies of the election returns which photographs reflect
apparent alterations and tampering of the originals?
1. The controlling
statute, Section 163 of the Revised Election Code, in its pertinent portion
reads:
“SEC. 163. When statements of a precinct are
contradictory.- In case it appears to the provincial board of canvassers
that another copy or other authentic copies of the statement from an election
precinct submitted to the board give to a candidate a different number of votes
and the difference affects the result of the election, the Court of First
Instance of the province, upon motion of the board or of any candidate
affected, may proceed to recount the votes cast in the precinct for the sole
purpose of determining which is the true statement or which is the true result
of the count of the votes cast in said precinct for the office in
question. x x x.”
The codal provision just quoted
significantly starts with the requirement of an initial finding
by the board of canvassers of a discrepancy in the number of votes given to a
candidate between authentic copies of election returns. This provision does not impart a meaning
other than what the plain wording literally gives. The statutory authority to the Court of First
Instance to recount is preconditioned upon, first, the averment that a
discrepancy exists between two or more genuine returns; second, the
alleged discrepancy being brought to the attention of the board of canvassers; third,
the board of canvassers ruling that such a discrepancy in the authentic copies
of the returns exists; and fourth, “the difference [in the number
of votes]” which “affects the result of the election.” Speaking
thru Mr. Justice Makalintal, we have ruled in Dizon vs. Tizon,[6]
that “the discrepancy must be brought to the attention of the
board in the process of canvass”; otherwise the Court of First Instance
has no authority to order a recount of the votes.
And this requirement, we must say, follows the practical
mechanics of a canvass. After the
preparation of the election returns by the board of inspectors, the next step
outlined by the law is the canvass thereof by the canvassing board. It is before this body that a candidate must
present any question regarding the election returns. The Code, of course, recognizes the right of
the inspectors, by a unanimous vote, to petition for correction of the returns
under codal Section 154. The law envisions that while the board is
doing its work in canvassing the election returns and tallying the results, its
attention should be called to any question which could affect its work. The board should be given an opportunity, as
Section 163 plainly directs, to decide whether – on the existence or
non-existence of discrepancy – to defer the canvass or to continue with
it. After all, it is upon this body that
the duty to canvass is reposed. This
function, it would seem to us, complements its authority to canvass only
election returns which are in due form and to exclude those which are
“obviously manufactured or palpably irregular.”[7]
It is true that on December
15, 1969, respondent Valley presented to the board of canvassers
photographs of the copies of the returns from the disputed precincts for the
municipal treasurer. But petitioner
objected upon the ground that even the photographs on
their face show that the copies of the returns for the municipal treasurer have
been tampered with. These photographs
are not the authentic copies of the returns. No effort was made by Valley to produce the
municipal treasurer’s copies of the returns themselves. The board was thus deprived of its authority
to rule on the question of whether or not there was a mere case of discrepancy
amongst authentic returns or one of tampering.
In Tagoranao vs. Commission
on Elections,[8]
this Court, thru Mr. Justice Castro, specifically ruled that “[w]hether the returns in question are spurious is a question
that should have been laid before the board of canvassers, not before the Comelec.” As timely it is to recall the guidelines we
have formulated in Ong vs. Commission
on Elections,[9]
thus –
“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; 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.”
We have not overlooked the fact that at the board’s meeting on
November 29, 1969, respondent Valley sought to prove discrepant entries with a
certificate of votes by precinct issued to the watchers of the registered
candidates and another certificate of votes based on the advance copies for the
municipal treasurer signed allegedly on November 18, 1969 by the assistant
municipal treasurer.[10]
These are not returns. The board could
have disregarded them and proceeded with the canvass. But the board still accommodated respondent
Valley by granting him time to produce authentic copies. And yet he did not. It is appropriate to note here that another
certificate of votes[11]
issued by the same assistant municipal treasurer at an earlier date, November 14, 1969, does not contain
any discrepant entries. This last
certificate precisely confirms the votes which petitioner all along has been
claiming were the actual votes received by him and Valley in those nine
precincts. Even the original advance
election results[12]
issued to the municipal treasurer reflect the same entries.
Without evidence upon which the board of canvassers could
properly draw a conclusion as to the alleged discrepancies, and it appearing
upon the copy of the returns for the provincial treasurer and the original
thereof for the Comelec that the entries in these
documents are clean on their face and do not show any sign of alteration or
tampering, we rule that necessity there was none for a petition for recount
under Section 163 of the Revised Election Code.
2. Argument has been
advanced that the Court of First Instance of Eastern Samar
may, in a petition for recount, resolve the question of whether or not there is
discrepancy amongst authentic returns or outright falsification, even before
this question is resolved either by the board of canvassers during canvass or
thereafter by Comelec. Concurrence of jurisdiction is thus
advocated.
The Revised Election Code is a special law. The mechanics of its enforcement are therein
delineated. For so long as the law
requires that the board of canvassers first resolve the question of
whether such discrepancy exists, we cannot subscribe to the view that courts of
first instance should be given equal jurisdiction to determine the question of
falsification or mere discrepancy.
Because, the court’s jurisdiction in this respect only arises after a
determination by the board of canvassers that discrepancy is between genuine –
not falsified tampered or spurious – returns.
A view that has become stabilized is that judicial recount of
votes under codal Sections 163 and 168 is but a special
authority conferred on the court. In the
language of this Court in Lawsin vs. Escalona,[13]
it [court’s authority to recount] “must be restrictively
construed, so as not to extend to other cases that may, more or less,
bear some resemblance to the situation described in said sections.” We
cannot thus simply write off the prerequisite that before a court of justice
may exercise jurisdiction under Sections 163 and 168, the alleged discrepancy
must first be brought to the attention of the board of canvassers and an
administrative ruling thereon had. Such
is the scheme of the election law which has chosen to grant to the court of
first instance but a delimited power.[14]
3. Even conceding that
such a concourse of jurisdiction exists, the canvassing board and Comelec have already acquired priority of
jurisdiction. Long accepted is the rule
that in case of parity of jurisdiction between two bodies, one which first
acquires jurisdiction in point of time has the power to continue and decide the
dispute.[15]
We adhere to, rather than deviate from, so wholesome a rule. No two courts should simultaneously take
cognizance of and hear one and the same case.
A contrary rule would foment confusion; it would give a party
opportunity to harass the other. No
litigant should be required to shuttle from one court to another to defend his
rights in a case.
Nor may the board of canvassers or Comelec,
for that matter, abdicate its jurisdiction to hear and determine the question
of discrepancy here presented. The duty
to so hear and determine is by law imposed upon them. Besides, it is an exercise of futility to
throw the burden upon a court which, after all, has no jurisdiction to
entertain the case.
4. One more reason there
is why respondent Valley may not go to court on judicial recount. It is because he has to rely on the copy for
the municipal treasurer of each of the returns from precincts 9, 9-A, 12, 15,
16, 17, 18-A, 21-A and 22 of Oras.
We have examined these returns.
We have compared them with those for the provincial treasurer and for
the Comelec.
We find that both the copies for the municipal treasurer and the
provincial treasurer are but carbon impressions of those – the originals – for Comelec. It simply
is unreal to palm off the copies for the municipal treasurer as genuine
returns. We note with interest that the
changes in votes therein were solely for the office of Congressman. Such changes do not even bear the initials of
any one member of the board of inspectors.
Nothing there is to attest to the legitimacy of the material changes in
the votes, which worked to the prejudice of petitioner. Evidence aliunde
need not be resorted to; a handwriting expert with a trained mind need not be
summoned. The falsification in the
returns is so patent to the naked eye.
Let us take the case of precinct No. 9.
In the original for Comelec and the carbon
copy for the provincial treasurer, petitioner Abrigo
garnered 26 votes in words and figures, while respondent Valley obtained 67
votes, also in words and figures. In
contrast, in the carbon copy for the municipal treasurer, it would appear that
the words “twenty six” representing Abrigo’s
votes were erased and signs of erasure still exist; and the 2 before 6 in the figures 26
was likewise erased, so that only 6 remains; and Valley’s original 67
votes were upped to 87. The word six
of sixty seven was changed to eight and the figure 6
of 67 was retouched with pencil to read 8 to make out 87
votes. The pattern is the same with the
returns from the other eight precincts.
Another interesting case study, is precinct 21-A. The original of this return for Comelec shows 56 votes for Abrigo
and 54 for Valley. One other
congressional candidate, Jose T. Ramirez, obtained 5 votes. The total number of votes cast for
Congressman is 115 votes. In the
municipal treasurer’s copy, the words fifty six corresponding to
the votes for Abrigo were erased and replaced with six. The figure 5 of 56 was erased,
leaving 6. Ramirez, who obtained 5
votes, was credited with zero in the municipal treasurer’s copy. Valley’s 54 votes swelled to 112. The fact that the word one
in one hundred and twelve was written to the left
and way out of alignment speaks a lot about the brazenness with which the
falsifications were committed.
The doer did not even as much as attempt at precision-tooling. Not escaping notice, too, is that in the
falsified municipal treasurer’s return, the total number of votes is not 115,
as heretofore stated, but 118.
We may not thus regard the copies for the municipal treasurer of Oras as authentic returns.
We have said, and repeatedly, that a falsified return
or spurious return amounts to no return at all.[16]
Considering the foregoing and the fact that there was no prior
ruling by the board of canvassers on the question of discrepancy between
authentic copies of the returns[17]
and that judicial recount is not thus the remedy,[18]
respondent judge acted without jurisdiction in entertaining and proceeding to
act on respondent Valley’s petition for recount.
5. Another trespass upon
orderly election process is brought to the attention of this Court by
petitioner in his averment that the ballot boxes corresponding to the nine
precincts in Oras just mentioned have been tampered
with allegedly for the purpose of altering the ballots therein. The inability to produce before this Court
the ballot boxes for inspection compounds the weakness of respondent Valley’s
petition for recount.
Suggestion there is in the record, in the form of a report of a
constabulary major and affidavits as well as the proceedings had on December 19, 1969 for the delivery
of the ballot boxes to the court of first instance, that an inquiry be made into the alleged tampering of these ballot
boxes. The present is not the time nor
is this Court the forum for a full-dress investigation. After all, sufficient reasons there are
already in the record on which to base our decision in the case herein.
6. We are here
confronted with the determination of the appropriate remedy, one which should
avoid the mischief of unjustifiedly delayed
proclamation. The Congressman-elect for
the lone district of Eastern Samar should have taken
his oath of office on December 30,
1969. The opening of the
sessions of Congress – January 26,
1970 – is fast approaching.
Time then is of the essence.
The record of this case discloses that the returns from all the
precincts in all towns of Eastern Samar,
with the exception of precinct No. 5-A of Oras, have
been canvassed. In that precinct, it will
be remembered, both the name of and the 42 votes cast for respondent Valley
were omitted. Comelec
suggested that the members of the board of inspectors file a petition for
correction of the return before the Court of First Instance as authorized by Section
154 of the Revised Election Code. There
is no necessity for this. Because,
during the course of the oral arguments before this Court, petitioner conceded,
for proclamation purposes, that Valley should be credited with 42 votes in that
precinct.
Only one other question remains.
It is whether the votes for petitioner and respondent Valley in precinct
No. 4 of Salcedo, Eastern Samar, had been correctly tallied. It would appear that in that precinct, Abrigo obtained 66 votes and Valley 49 votes. Even as petitioner had expressed willingness,
undoubtedly for expediency, to concede and have deducted the 17 votes’
difference, it would seem proper that we look into the matter.
The problem arose because there is a diagonal line appearing in
pencil running from above the line 1 of “Felipe Abrigo”
down to the word “by” in printed words at the left bottom side of the
election return which reads: “Excess spaces after writing the names of all
candidates for REPRESENTATIVE shall be cancelled by a diagonal line.” In
a telegram by Election Registrar Garrado for Salcedo, Eastern Samar,
to Comelec, he explained that said line was
inadvertently placed in that space before the board of inspectors discovered
their failure to enter the names of the candidates for Congressman and the
votes obtained by them. The depositions
of all the inspectors, the poll clerk and the substitute poll clerk, separately
executed on December 26, 1969,
required by and now on file with Comelec, all confirm
the statement of the election registrar.
The net result then is that the total number of votes obtained by
Felipe Abrigo remains to be and is 23,389 votes. Valley’s votes, which originally were 23,103,
should be increased by the 42 votes (precinct 5-A, Oras)
to make a total of 23,145 votes, the total number of votes which should really
have been credited to him.[19]
For proclamation purposes, Abrigo still holds a
majority of 244 votes.
We find it difficult to stand mute at the undisguised effort –
once again resorted to – to frustrate proclamation by falsification. This vicious election tactic is a chisel-blow
to the constitutional precept of “free, orderly, and honest elections.”[20]
The following passage from Gardiner vs. Romulo
(1914), 26 Phil. 521, 560, is worth remembering: “They who in Rome
watched and kept the sacred fire were vestal virgins. Equally pure should they be who watch and
guard that which is far more to us than mystic altar fires.”
FOR THE REASONS GIVEN, the petition for certiorari,
prohibition and mandamus herein is hereby granted; and
(1)
Respondent judge of the Court of
First Instance of Eastern Samar is hereby declared
without jurisdiction to entertain the petition for recount in Election Case No.
42 therein filed by respondent Valley;
(2)
The injunctive writ dated December
15, 1969 issued by respondent judge in said Election Case No. 42 prohibiting
proclamation of the winning candidate for Congressman for the lone district of
Eastern Samar is hereby set aside;
(3)
Respondent judge is hereby
directed to dismiss Election Case No. 42 aforesaid;
(4)
The directive of respondent
Commission on Elections enjoining the provincial board of canvassers from
proclaiming the winning candidate in the congressional elections for Eastern Samar is hereby set aside; and
(5)
Respondent provincial board of
canvassers of Eastern Samar is hereby directed
forthwith and not later than Saturday noon, January 24, 1970, to convene and
proclaim petitioner Felipe J. Abrigo as the duly
elected Member of the House of Representatives for the lone Representative
District of the province of Eastern Samar, said
candidate having received after canvass 23,389 votes, the same being a
plurality of the votes legally cast.[21]
In view of the impending opening of the sessions of Congress,
this decision shall be immediately executory.[22]
Costs against private respondent Vicente O. Valley.
SO ORDERED.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro,
Fernando, Teehankee, and
Barredo, JJ., concur.
Concepcion, C.J., did not take part.
[1] Amended per resolution of this Court on December 22, 1969.
[2] Entitled “Vicente O. Valley, Petitioner, versus Felipe J. Abrigo
and the Provincial Board of Canvassers of Eastern
Samar,
Respondents.”
[3]
Annex D, Respondent Valley’s
Memorandum; emphasis supplied.
[4]
Provincial Fiscal Vicente N. Ramirez, Chairman; Governor Victor A. Amasa, Vice-Governor Federico O. Mengote,
Board Member Fernando B. Lugay, Board Member Celestino B. Sabate, Board Member
Galo B. Alvor, Jr., Highway
District Engineer Benito P. Ramos and District Health Officer Faustino P.
Reyes, Members.
[5]
Annex I, Amended Petition.
[6]
L-28550-2, March 27, 1968,
22 SCRA 1311, 1316; emphasis supplied.
[7] Pacis vs. Commission on Elections, L-29026,
September 28, 1968, 25 SCRA 377, 388, citing Tagoranao
vs. Commission on Elections, L-28590 and Cota
Cornell vs. Commission on Elections, L-28598, March 2, 1968, 1968A Phild. 806, 813; Ong vs. Commission on
Elections, L-28415, January 29, 1968, 1968A Phild. 248, 254, citing Nacionalista Party vs. Commission on Elections, 85
Phil, 149, 157, 158, and Lagumbay vs. Climaco, L-25444, January 31, 1966.
[8] L-28598, March 12, 1968, 22 SCRA 978,
983.
[9]
L-28415, January 29, 1968,
22 SCRA 241, 251-252.
[10]
Annex A of Respondent Valley’s
Answer.
[11] Exhibit 1 of Petitioner Abrigo.
[12] Submitted to this Court during the course of the oral arguments.
[13] L-22540, July 31, 1964; 11 SCRA 643,
646, citing Parlade vs. Quicho, L-16259, December 29, 1959.
[14] See: Ong vs.
Commission on Elections, supra, at pp. 250-251.
[15] See:
Reyes vs. Reyes, L-28476, January 31, 1968, 22 SCRA 485, 490, citing
Acain vs. Board of Canvassers, L-16445, May
23, 1960; Ondona vs. Commission on Elections,
L-29199, March 28, 1969, 27 SCRA 554, 560.
[16] Espino vs.
Zaldivar, L-22325, December 11, 1967, 21 SCRA 1204, 1215; Ong vs.
Commission on Elections, supra; French vs. Commission on
Elections, L-28561, July 8, 1968, 24 SCRA 23, 28.
[17] Pacis vs.
Commission on Elections, supra, at p. 391.
[18] Balindong vs. Commission on Elections, L-29610, March 28, 1969, 27 SCRA 567, 583.
[19] See: Annex 1 of Comelec’s
Answer; Valley’s Answer, paragraphs 10 and 11; Annex B of the Amended
Petition, p. 2.
[20] Section 2, Article X, Constitution.
[21] See: C.E. Form 75.
[22] See: Dispositive part of
the decision in Estrada vs. Sto. Domingo, L-30570, July 29, 1969, 28 SCRA 890,
919.