ROGELIO O. TIGLAO, PETITIONER, VS. THE COMMISSION ON ELECTIONS, CORNELIO SANGA AND THE BOARD OF CANVASSERS OF PAMPANGA, RESPONDENTS.

The present proceedings are the sequel of our judgment of
February 18, 1970 in Case L-31566 wherein inter alia
we set aside the resolution of January 26, 1970 of respondent Comelec and directed that the proclamation of the winning
candidate for the position of Congressman for the second district of Pampanga be held in abeyance until after the questions
affecting the same, as discussed in the decision, pending in the Pampanga court of first instance, are determined with
finality.

Foremost among these incidents pending in the Pampanga
court, as recounted in our decision of February 18, 1970, were seven ex-parte petitions for judicial correction of election returns
under section 154 of the Revised Election Code filed on January 27, 1970 by the
corresponding boards of election inspectors.^[1]
In its “decision” of February 7, 1970, the Pampanga
court had therein authorized the correction of the election returns from six
precincts of San Luis, Pampanga,^[2]
crediting petitioner Tiglao with 292 additional votes
therein that would overcome respondent Sanga’s
over-all margin of 247 votes.  After our
decision of February 18, 1970, the Pampanga court
eventually maintained its said “decision” of February 7, 1970, per
its resolution of March 10, 1970, denying therein intervenor
Sanga’s motion for reconsideration of February 25,
1970 and its resolution of March 25, 1970 denying therein intervenor
Sanga’s motion of March 13, 1970 for retrial and
recall of petitioners-inspectors and witnesses for cross-examination.

In this Court, after several incidents resolved in our resolutions
of March 19, March 20, March 23, March 25, and March 30, 1970, we directed
respondent Comelec, through the last resolution of
March 30, 1970 “to immediately convene the board of canvassers with instructions
to conclude its canvass and to proclaim forthwith the winning candidate for the
second congressional district of Pampanga. “

The corresponding members of the boards of inspectors of the six
San Luis precincts concerned thereafter convened at the session hall of the Comelec before the three-man supervisory committee
appointed by Comelec at proceedings attended by the
counsels of the contending parties and the provincial board of can­vassers of Pampanga and made the authorized corrections, duly initialed
by them, on the corresponding returns, crediting peti­tioner Tiglao with 292 additional votes therein in the following
manner:

Upon termination of the act of correction, respondent Sanga’s counsel objected to the correctness of the
corrections made in four precincts,^[3]
principally on questions of identity, raised as to whether the persons, who
appeared and were questioned by the committee and by counsels for both parties
and made the corrections on the corresponding returns,were
the same persons who accomplished the said returns in the elections.  The commit­tee so found affirmatively in its
report of April 3, 1970 to
res­pondent Comelec, which, in its resolution of the
same date, approved the report of the committee, overruled respondent Sanga’s objections and “consider(ed) said corrections
to have been regularly made.”

Upon the provincial canvassing board reconvening on April 6, 1970
to discharge its function, respondent Sanga’s counsel
verbally moved that the six corrected returns” be disregarded on the
ground that said returns on their face are mathematically impro­bable and were
obviously manufactured as it clearly appears that the votes cast for the
congressional candidate(s) are very much in excess of the registered voters in
the respective precincts. ” The board thereupon, by unanimous vote,
resolved to refer the issue to the Comelec for
resolution.

Respondent Comelec, after hearing the
parties, promul­gated its split 2 to 1 resolution of April 7, 1970, wherein,
resolv­ing the referral, it ordered the board “not to include in the can­vass
the election returns for Precincts Nos. 9, 15, 16, 19, 20 and 21 of San Luis, Pampanga, for being mathematically impro­bable as shown by
the great excess of votes appearing thereon for congressional candidates”
and to thus complete the canvass and make the corresponding proclamation of the
winner on April 13, 1970 at 5:00 p.m., unless restrained by this Court.

Upon petitioner Tiglao filing on April
9, 1970 of his “Motion to Enforce Judgment (alternatively) Petition for Certiorari“, challenging this last
resolution of respondent Comelec on the ground that Comelec had no authority to review and vacate the Pampanga court’s correction “decision” the Court
issued a restraining order as prayed for and required respondents to file their
answer thereto. Respondents, in their answers, joined issue, asserting that the
Pampanga court’s ruling in the judicial correction
proceedings is not res judicata
and binding on Comelec insofar as the genuineness of
the corrected returns is concerned if in Comelec’s
judgment the use thereof would tend to foist a fraud on the electorate.
Respondent Sanga further contended that petitioner Tiglao had instigated the boards of inspectors of the
precincts concerned to petition for judicial correction of the returns to
offset the former’s (Sanga’s)
majority as shown in Comelec’s first resolution of
Jan­uary 26, 1970 (set aside in our judgment of February 18, 1970), against
said board’s previous representations to Comelec that
they had been forced to prepare said returns at gunpoint.

The Court heard the parties in oral argument on April 23, 1970
and held a re-hearing on July 16, 1970, wherein, pursuant to its resolution of
June 29, 1970, it heard Hon. Honorio Romero,
presiding judge of Branch III of the Pampanga court
who heard and decided the correction proceedings and received from his clerk of
court the records, exhibits and transcripts of the proceed­ings.

The questioned Comelec majority
resolution itemized the following excess votes found upon examination of the
corrected returns:

The Comelec majority, holding that
“where, as in this case, the excess votes were the result of judicial
correction made one day after the Commission has promulgated its decision (Case
No. RR-695), and the winner already known, based solely on sworn
petitions of the corresponding boards of inspectors, and the returns as
corrected contained excess votes materially affecting the result of the
election, then the only explanation that could be derived therefrom
is that said boards had submitted false or inaccurate data
to the Court,” that it “cannot countenance the use of election
returns that are ‘obviously’ invalid” and that “the court merely
sustained the sworn petitions of said boards without considering other factors
on the probable consequences thereof”, ordered the exclusion for being
“mathematically impro­bable” of the six corrected returns from the
canvassing, “adhering to the sound policy that abhors ‘mere pyrrhic
victory of candidates and that the holding of elections must, at all times and
at any cost, be free, orderly and honest.”

The parties assail each other for their respective incongruous
postures: respondents’ upholding for the Comelec’s
ruling sustaining Sanga’s contention that the returns
which were concededly genuine and au­thentic are now to be excluded as
“obviously manufactured” and invalid after and because of the
corrections thereon judicially authorized by the Pampanga
court, which very corrections Corn­elec had itself
ruled to have been “regularly made;” and petitioner’s, for
maintaining that the six returns were properly corrected only to reflect the
true and correct total votes of Tiglao (313,
increased by 292 from 21), ignoring the 273 excess votes appearing on the very
face of the returns as a result of the corrections made, as against the lesser
“number of voters who actually voted” with the corresponding
“ballots found in the compartment for valid ballots recorded thereon (897
votes cast as corrected vs. 624 voters, who actually voted = excess of 273
votes)^[5]
and for seeking to explain them away now by affidavits of the inspectors
submitted at the first hearing held on April 23, 1970 to the effect that the
votes credited now to Tiglao per the correction were
wrongly cre­dited originally to another candidate, Federico Taruc,
and should therefore be deducted from the votes credited to Taruc
in the re­turns, when they had testified at the correction proceedings that
aside from their mistake in the number of votes credited to peti­tioner Tiglao, no other mistake had been committed by them in the
preparation of the returns.^[6]

1.  It is evident that no matter
how worthy the respondent Comelec’s motives may be,
the Comelec lacks jurisdiction and authority to
review the judicial correction ordered by the Pampanga
court as the court of competent jurisdiction under section 154 of the Revised
Election Code.^[7] Much
less may Comelec set aside the judicially corrected
returns, which is a foreclosed question as it itself admits.  Assuming in gratia
argumenti that the Pampanga
court grossly erred in ordering the corrections on the basis of patently false
testimony of the inspectors resulting in the excess votes now shown on the
corrected returns, Comelec may not collaterally
attack and discard the Pampanga court’s ruling as
correctly stated in Commissioner Patajo’s dissenting
opinion.  The judicial resolution of the
inspectors’ petition for correction of returns is final and executory
for the purpose of the canvass solely, and with the court’s order of approval
or denial, as the case may be, in the exercise of its sound discretion, the
proceeding comes to an end, giving way to the proclamation and the proper
electoral protest.^[8]
No appeal lies from the court’s order; “(I)f 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.”^[9]

2.  The Court has noted,
however, that the vexing question at bar of excess votes emerging despite, and
in fact as a result of, the judicial correction proceedings would not have
arisen, had due notice of the petition for correction been properly given to
the af­fected candidates, with the questioned returns sought to be correct­ed
duly submitted to the lower court, and hence, the testimony of the inspectors
in support of their petition would not have been heard ex-parte
by the court without benefit of cross-examination, as in the case at bar.

The Court, on the strength of prevailing jurisprudence cited in
the preceding paragraph No. 1, had issued in Case L-31566 its resolution of
March 23, 1970, denying respondent Sanga’s urgent
motion of March 19, 1970 for reconsideration of the Court’s reso­lution of the
same date declaring its decision of February 18, 1970 to be executory
and authorizing the canvassing board to reconvene and complete its
canvass.  The Court, thereafter, acting
upon respondent Sanga’s urgent motion for
reconsideration of March 24, 1970 (wherein Sanga for
the first time adverted to the excess votes that would result from the judicial
correction), issued its resolu­tion of March 30, 1970 denying Sanga’s motion and declaring that “the electoral
administrative processes which are mandated by law to be summary in nature in
order to determine expeditiously the outcome of the elections … must come to
an end” and that “no further motion to hold in abeyance the effectivity of the Court’s resolutions of March 19 and 23
(for the canvass to proceed) will be entertained. “

In our decision of February
18, 1970, we had directed that the proclamation of the winning
candidate between the contending rivals be held in abeyance until after the
questions affecting the same, pending in the Pampanga
court, are determined with finality.  The
challenged COMELEC resolution now before us has per­force laid open the question
of finality of the Pampanga court’s correction ruling
– not because of Comelec’s resolution beyond its
jurisdiction to exclude the corrected returns and thus review and set aside the
Pampanga court’s ruling – but because of the grave
question of due process by virtue of lack of notice of the proceedings on the
parties affected, as motu proprio noted by the Court, and which bears heavily on
the validity or nullity of the correction proceedings, as hereinafter
discussed. Besides, prescinding from the fact that
the Pampanga court’s ruling was not directly elevated
to the Court, it is a settled principle in the administration of justice that
“it is always in the power of the Court to suspend its own rules or to
except a particular case from its operation whenever the purposes of justice
require it.”^[10]

Since the Court’s pronouncement in Gumpal
vs. Court of First Instance of Isabela10-a that section 154 of the Revised
Election Code does not require notice of the judicial correction
proceedings upon the candidates affected, in contrast with section 163 thereof
which specifically directs that notice of the judicial recount
proceedings be “given to all candidates affected”, the Court has had
occasion to amplify on its ruling and the rationale therefor.
As restated in Estrada vs. Navarro,11 the Court has invariably required
unanimity of the inspectors in petitioning for correction for the reason
“that the proceeding for correction is a summary one, is not supposed to
raise controversial issues, and does not call for a recount or revision of the
ballots themselves, either of which contemplates a different remedy.”

Experience has shown us the contrary, however.  Invariably, the correction petition itself,
although by unanimous consent of the inspectors, has ipso facto given
rise to grave controversial issues and doubts since the correction sought to be
made would materially affect the result of the election.  Witness Dizon,12
where by judicial correction of the election return of one precinct in Biñan, Laguna, reducing candidate Benitez’ votes therein
from 148 to 129, Benitez lost out to his opponent Dizon
in the gubernatorial race in the 1928 elections by 10 votes, when without the
correction, he would have won by 9 votes; Gumpal,
supra, where by judicial correction of the returns from two precincts in
Santiago, Isabela, Leocadio
Ignacio, Gumpal’s opponent for the position of
provincial board member in the 1959 elections was credited in one precinct with
174 votes “not included in (the) election return due to inadvertence” and
140 instead of 114 votes in the other precinct, or a total of 200 additional
votes, sufficient for Ignacio to nose out Gumpal by
10 votes; and the latest case of Cuenco vs.
Laya,13
where by judicial correction of the return from one precinct in Carcar, Cebu, upheld by the Court
by a six-to-three vote, Eduardo Gullas was credited
with 67 votes to supply the complete omission from the return of his name and
votes received, which votes were decisive in his being proclaimed winner over
Antonio V. Cuenco by 16 votes in the last elections
for the third congressional district of Cebu.  And controversies have also arisen even as to
unanimity of the petition itself, e.g. as to whether the adverse party’s
inspector understood the peti­tion or was the person actually appointed as such
or was com­pelled to sign the petition under duress, or whether the unanimous
petition may still be acted upon by the court or be properly con­sidered when
the adverse party’s inspector recants or disowns the petition or whether such
unanimity need only exist upon the filing of the petition or before the court
issues the order of cor­rection.

In the above-cited cases, the Court, reflecting on the desirability
of requiring that due notice of the correction proceedings be given to all
candidates affected, did concede in Gumpal
that “it would be a good practice to require such notice in appropriate cases,
particularly when there is sufficient time therefor
and there are circumstances indicating that the allegations of the petition for
correction may not be entirely truthful,” and in Cuenco,
that “due process, the community’s sense of fairness, would seem to
indicate the need of hearing the petitioner Cuenco,
consistently with the  summary
character of the proceedings.  In­deed
the respondent judge might have accommodated the peti­tioner’s request,
considering that the latter’s residence is only a stone’s throw from the
courthouse. ” But the Court therein, after satisfying itself that all
indications pointed to the veracity of the petitions unanimously filed by the
inspectors, upheld the judicial corrections thus authorized, despite the lack
of notice to the affected parties, on broad perspectives of public policy in
the light of the law’s mandate requiring the prompt ascertainment in summary
proceedings of the winning candidate entitled to pro­clamation.

Considering that the difference in votes between the rival
candidates in the cited cases, as in the case at bar, is marginal, such that
the judicial correction by unanimous petition of the ins­pectors of one or a
few precincts would materially affect the results of the election and spell
victory or defeat, the Court has felt constrained to re-examine thoroughly the
question and after due deliberation has arrived at the conclusion that due
process, as guaranteed by the Constitution, requires in order that juris­diction
may be properly acquired over the parties affected and exercised by courts of
first instance in correction proceedings under section 154 of the
Revised Election Code that (1) notice of the correction proceedings be
given to all candidates affected just as it is required under section 163
thereof governing recount proceedings and (2) copy of the return sought
to be corrected must be ordered by the court to be duly submitted to it by the
provincial or municipal treasurer, as the case may be, or by the chairman of
the board of canvassers concerned who had received the same for the canvassing,
without prejudice to availing of other official copies of the return such as
the Comelec’s copy and that deposit­ed in the ballot
box.

The demands of procedural due process that a party affect­ed must
be given notice and an opportunity to be heard must be fulfilled together with
the law’s policy for the prompt proclama­tion of the true winner in the
elections.  The summary character of the
proceedings, if implemented with a firm hand so as to rule out impertinent and
irrelevant questions and dilatory tac­tics, would normally not cause any undue
delay in the ensuing proclamation.  And
if some measure of delay were entailed, nevertheless the due process
requirement may not be dispensed with.14 Lack of notice to a party
adversely affected has invariably been held to mean the nullity of the
decisions rendered in ordinary civil cases, since they “suffer from a
fatal infirmity for want of due process.”15 As stated by the now Chief Jus­tice
in Cuaycong vs. Sengbengco,16
‘Acts of Congress, as well as those of the Executive, can deny due process only
under pain of nullity, and judicial proceedings suffering from the same flaw
are subject to the same sanction, any statutory provision to the contrary
notwithstanding. “

This doctrine of due process should equally be applied to correction
proceedings under section 154 of the Revised Elec­tion Code, for they are in
law and in fact judicial proceedings. As pointed out by Mr. Justice J. B. L.
Reyes speaking for the Court in Binging Ho vs. Municipal Board of Canvassers,17
wherein we upheld the constitutionality of the legislative grant of authority
on courts of first instance to recount the ballots in case of conflicting
election returns,18 “(T)he ascertaining that such
basic facts do exist according to the evidence submitted by the parties is
essentially a judicial function, and it is only after the court decides that
the recount is legally justified that the actual recount takes place.” Correction
proceedings constitute the only other instance of such legislative grant of
authority on the courts to intervene in the pre-proclamation electoral process,
and the Court’s ruling in Binging Ho is equally applicable.  In paraphrase thereof, the pre-requisite
finding or determination by the courts as to the veracity or non-veracity of
the inspectors’ petition and of the error alleged, to warrant the granting or
denial of judicial authority to make the correction, an exercise of the
judicial power to ascertain the facts, pass upon their sufficiency, and apply
the law to the controversy.”

With due notice of the proceeding, the fate of a candidate
adversely affected would not be adjudged ex-parte and
without due process, and he would have the opportunity of confronting the
inspectors seeking the correction and cross-examining them to assist the court
in appraising the veracity of the petition, and the paramount public interest
which calls for the proclama­tion of the actual winner in the election would be
subserved.  The
spectacle of excess votes resulting from the correction authorized by the court
would not arise, since the same would be readily perceived by the court and the
parties affected from the face of the return, which states the number of
registered voters in the precinct, the number who actually voted, with the
corresponding number of valid and spoiled ballots.

There really exists no valid reason compatible with due process
why such notice of the proceedings and submittal of the return should be
required only in recount proceedings and not in correction,
proceedings.

For the foregoing reasons, the Court accordingly expressly
overrules the previous doctrine enunciated by it in the cited cases of Gumpal vs. Court of First Instance of Isabela and Cuenco
vs. Laya, supra, and all other cases
inconsistent with the doctrine now enunciated that notice of the correction
proceedings must be given to all candidates affected and that copy of the
election return sought to be corrected should be ordered by the court to be
duly submitted to it by the custodian thereof. 
The Court therefore declares the correction proceedings in the Pampanga court null and void.

3.  With the Court’s
declaration of nullity of the Pampanga court’s
decision in the correction proceedings for lack of notice to the
candidates affected, specifically petitioner Tiglao,
respondent Sanga and candidate Federico Taruc (to whom the addi­tional 292 votes now sought to be
credited to Tiglao per the correc­tion were
erroneously credited, according to the April, 1970 af­fidavits of the
inspectors, supra), said court will have to hear anew the inspectors’
petitions for correction, with due notice to the candidates affected, and
render anew its resolution on the basis of the evidence that may be submitted
to it.

The Court herein expressly discards the previous doctrine of Benitez
vs. Paredes19
and Dizon vs. Provincial Board of
Canvassers20
and all subsequent cases uniformly ruling that in correction proceedings, where
the court after hearing the inspectors is satisfied as to the veracity of their
petition or affidavits and of the error alleged to have been committed, it
shall, without any need of opening the ballot boxes, order the corresponding
correction of such error in the election return.  In lieu thereof, the Court now sets the
procedure that in all such correction proceedings, the court of first instance
upon being satisfied at the hearing that a prima facie case has
been made out, must furthermore, — unless the correction sought is indu­bitable
or unopposed and may therefore be summarily ordered -­in all cases where it
finds that the integrity of the ballot box and its contents has been duly
preserved, go to the real evidence, open the ballot box and conduct a summary
recount of the ballots themselves as in judicial recount proceedings under
section 163 of the code.

In resolving now to establish the procedure for a summary recount
of the ballots in disputed correction proceedings where the ballot box and its
contents have not been tampered with, the Court is impelled by its
constitutional prerogative and duty to lay down the guidelines and fix uniform
procedures for the observance of trial courts and the parties affected.

Under its constitutional rule-making power “to promulgate
rules concerning pleading, practice and procedure in all courts,”21
it is conceded that ‘procedure” is “generally accepted as embrac­ing
both ‘pleading’ and ‘practice’ and it also includes ‘evidence.‘ What
evidence should be admitted and what rejected in each case, and how
to weigh it under particular circumstances is fundamen­tally a judicial
function and essentially a procedural matter.”22
Related thereto is the injunction in Rule 135, section 6 of the Rules of Court
that:

“Sec. 6. Means to carry jurisdiction into effect. –
When by law jurisdiction is conferred on a court or judicial officer, all
auxiliary writs, processes and other means necessary to carry it into effect
may be employed by such court or officer; and if the procedure to be
followed in the exercise of such jurisdiction is not specifically pointed out
by law or by these rules, any suitable process or mode of Proceeding may be
adopted which appears conform­able to the spirit of said law or rules.”
(emphasis furnished)

This rule was incorporated in the pre-war Rules of Court on the
basis of the Court’s assertion, in connection with its rule-making power in the
early case of Shioji vs. Harvey,23
that “(I)ndependent of any statutory provision .
. . every court has in­herent power to do all things reasonably necessary for
the ad­ministration of justice within the scope of its jurisdiction. ” In Villalon vs. Arrieta,
supra, passing on the more specific provisions of section 163 on recount
proceedings (as compared to the broad and general provisions of section 154 on correction
pro­ceedings), the Court observed that “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 Court, therefore, declares that the suitable process or mode
of proceeding in disputed correction proceedings that would enable trial courts
to effectively exercise their fundamen­tally judicial function of receiving and
weighing the evidence is to avail of the real evidence24
of the ballot box and of its contents and to conduct an arithmetical count of
the ballots themselves, as in recount proceedings under section 163 of the
code. Neither appreciation of the ballots nor determination of their validity
is called for, since the only purpose of the recount, as is well settled by
jurisprudence,25
is merely to count the number of votes received by each candidate as they
appear on the face of the valid ballots previously counted by the board of
inspectors.  The recount conducted as
part of the correction proceedings would serve best the overriding spirit of
the election code – in entrusting to courts of first instance exclusive jurisdiction
over summary recount proceedings under sections 163 and 168 and correction
proceedings under section 154 – of restoring public tranquility by
dispelling all doubts as to the true number of votes cast for the rival
candidates in a given pre­cinct.26

The Court is further sustained in its conclusion by the following
compelling reasons and considerations:

(a)  Far from being non-contentious in character,
the margin of votes involved in correction proceedings has in­variably proven
to be not only controversial but decisive of the results of the
election, as discussed above;27

(b)  There really is no substantial difference bet­ween
correction proceedings and recount proceedings in the one and
principal objective thereof of expeditiously determining be­fore proclamation
the actual votes to be summarily credited to a particular candidate or
candidates in a given precinct where the inspectors claim to have committed an
honest error or there are discrepant returns, and thus offering prompt relief
in a simple but decisive controversy;

(c)  The rationale behind the grant of authority to
courts of first instance to authorize correction of election returns, as well
as to recount the ballots in case of discrepancy between authentic copies of
the same returns, is that “mistakes of all sorts are too common in human
experience to justify anyone in denying the possibility of honest error …
(generally such errors or omis­sions to the prejudice of one candidate are
attributed to honest mistake, oversight, inadvertence or confusion due to
fatigue and lack of sleep or terrorism as in the case at bar) .. and it was in
contemplation of the possibility of such errors that the law­makers provided
for their correction with judicial approval.”28
The only difference as far as the commission of the error by the inspectors is
concerned is that in recount proceedings, the errors appear on the face
of the discrepant copies of the return, while in correction proceedings,
the error is not readily seen on the face of the return (except where the name
and votes of a particular candidate is totally omitted, as in Cuenco) but has to be manifest­ed by sworn statement
or petition of the inspectors alleging that they gave a certain candidate(s)
more votes or less votes than were actually counted for him. Just as there is
need to recount the ballots in case of discrepant returns in order to determine
the true result of the count of votes cast for the contending candidates, there
exists the same, if not greater need, to also recount the ballots for the same
purpose, in case the inspectors claim they committed some honest error and seek
judicial authorization to alter or amend the return originally prepared and
announced by them. The procedural and evidentiary rule of opening the ballot
box and summarily recounting the votes would readily bear out the fact of such
honest error and no prejudice will have been caused; in the contrary case,
however, the falsity of the alleged honest error would just as readily be
exposed and irreparable prejudice to the intended victim will have been
avoided;

(d)  Nothing in the provision of section 154 of the
Revised Election Code on correction proceedings bars a recount of the
votes.  The cited codal
provision merely directs that “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.” The petition for correction is addressed to the sound
judicial discretion of the court, and there is nothing in the law to indicate
that the judge of first instance must of necessity order the correction29
and accept unqualifiedly the inspectors’ version of what was the true result of
their count of the votes. For there is nothing either in the law that would bar
the judge from following the realistic procedure provided in section 163 of the
Code for a summary recount of the votes,30 and thus cut the Gordian Knot and
thereby satisfy himself as well as all the parties – more than a hundred affidavits
of the inspectors – of the true and actual result of the count of the votes
cast in the precinct concerned;

(e)  The past precedents against opening the ballot
box and recounting the votes were based on the Court’s giving paramount
consideration to the imperative perspectives of public policy imposing upon
courts the premptory duty of ascertaining the
candidate entitled to proclamation as the winner. But side by side therewith,
the Court has time and again stressed the overriding necessity of thwarting the
unrelenting efforts of the unscrupulous (who continually tailor their evil
schemes to fit within the ambit of the Court’s latest pronouncements) to frus­trate
the popular choice of the electorate and leave the aggrieved party the
“mere pyrrhic victory” of a long tedious election pro­test, and of
exerting every effort to ascertain the true returns, mindful that outright
exclusion from canvass of returns decisive of an election is an act which lends
itself to misuse by the canvass­ing board. These imperatives likewise based on
the clear man­dates of public policy ordain as indicated above, that the true
actual results of the balloting be determined by opening the ballot box and
recounting the votes cast, even though the expeditious proclamation of the winning
candidate be delayed in some measure. In practice, however, this should prove
as expedi­tious as the summary recount in recount proceedings under sec­tion
163 of the Code, for as soon as the trial court is satisfied as to the
existence of a prima facie case of correction, he may conduct
forthwith the recount and thereby determine the true result of the balloting,
cutting short all further conjecture and discussion as to the fidelity of the
inspectors’ recollection of the votes cast and of the errors allegedly
committed by them in re- cording the in the election return;

(f)   The broad legislative grant of authority to
the courts of first instance to authorize the amendment or alteration of the
return necessarily carries the grant of whatever is reasonably necessary for
the proper and effective exercise of the court’s judicial task, since the
procedure is not specified by the code and the court is enjoined under Rule
135, section 6 to adopt a suitable process conformalby
to the spirit of the law, viz, to demand the
submittal of the real and best evidence of the ballots as deposited in the
ballot box and conduct a summary recount to determine the true and actual
result of the balloting, which the courts may then judiciously and within the
limits of human certainty authorize to be incorporated in the return submitted
for correction;

(g)  The question of the contending candidates’ con­sent
to the trial court’s opening the ballot box and recounting the ballots – which
formula was proposed in the past without success, as one or all candidates
invariably would manifest their non-con­formity on some vague or speculative
grounds – thus becomes irrelevant in-the light of our pronouncement now
establishing the conduct of such summary recount as the suitable procedure in correction
proceedings under section 154 of the code;

(h)  Our pronouncement now is but a logical
development and consequence of our decisions in Pacis
vs. Comelec,31
upholding Comelec’s order therein to open the ballot
boxes in four precincts to secure serviceable copies of the election returns;
in Mutuc vs. Comelec,32
authorizing the reopening by the inspectors of the ballot box to retrieve an
accomplished copy of the return, failing which the inspectors were directed to
count the ballots and accomplish a new return based thereon: as well as our
decision of February 18, 1970 in the case at bar, where we overruled
respondent Comelec’s ruling that the remedy of
judicial correction of the returns for Precincts 35-A and 36, Apalit, where the name of petitioner Tiglao
was completely omitted, could not longer be availed of because the inspectors,
according to Comelec, “could not remember
whether petitioner received any votes” therein, and instead ordered the
inspectors to open, in the presence of all parties concerned, the ballot boxes
for said precincts, count the votes for petitioner Tiglao,
if any, and make new returns accordingly; and

(i)   The condition
herein required that the trial court make a preliminary finding that the
integrity of the ballot box and its contents has been duly preserved is, of
course, a neces­sary one, since a new count of the ballots found in a ballot
box that has been tampered with would serve no legitimate purpose and would
defeat the very objective of the recount to determine from the real evidence of
the ballots the true results thereof.33 In such a case, the trial court
must content itself with all other secondary evidence available to satisfy
itself of the merit of the petition, such as the inspectors’ testimonies, the
tally board and tally sheet, minutes of voting, etc., without regard to the
contents of the tampered ballot box.

ACCORDINGLY, the Court has resolved: (a) to annul and set
aside respondent Comelec’s resolution of April 7,
1970, and (b) to likewise annul and set aside all proceedings, as well as the
“decision” of the Court of First Instance of Pampanga
dated February 7, 1970 and its resolutions of February 25, 1970 and March 25,
1970 affirming its said “decision”, in the correction proceedings,
Election Cases Nos. 3653, 3654, 3655, 3656, 3657 and 3659 thereof, with
instructions as discussed above, particularly in paragraphs 2 and 3 hereof, to
hear the same anew with due notice to the candidates affected; to have before
it the copies of the election returns sought to be corrected; upon being
satisfied prima facie of the errors alleged to have been committed by
the boards of inspectors concerned and upon its preliminary finding that the
identity and integrity of the ballot boxes have been duly preserved, order the
opening thereof and after likewise satisfying itself that the integrity of the
ballots therein has been also duly preserved, conduct a summary and
arithmetical recount of the ballots themselves; and thereafter to render anew
the appropriate resolution on the basis of the evidence before it.

Let a copy hereof be served upon the Court of First Instance of Pampanga, Branch III, presided by Judge Honorio
Romero, for its compliance herewith.

Concepcion, C.J., Reyes, J.B.L., Castro,
Villamor, and Makasiar, JJ., concur.

Dizon and
Zaldivar, JJ., concur
and dissent in a separate opinions.

Makalintal, J., concurs in the concurring and dissenting opinion of Mr.
Justice Dizon.

Fernando and Barredo, JJ., concur in a
separate opinions.

^[1]
Election Cases Nos. 3653 to 3659 of the Court of First Instance of Pampanga.

^[2]
Precincts 9, 21, 20, 19, 16 and 15, and disauthorizing
that of Precinct 18 covered by Election Case No. 3658.

^[3]
Precincts 9, 15, 16 and 20.

^[4]
The total under this column should be 92, but in precinct 20,no excess vote vis a’ vis registered voters
results and the total no. of votes cast of 107 (with the correction) is 13
short of the no. of 120 registered voters. Hence, 13 is deducted from 92,
leaving a total excess votes in the 6 precincts of 79, as compared to the total
number of registered voters. (897 votes cast less 818 registered voters shows a
total of 79 by way of excess votes cast in the 6 precincts).

^[5]
897 votes cast as corrected vs. 818 registered
voters per data on returns gives a total excess votes in the six precincts of
79; supra fn. 4.

^[6]
Except in 2 out of the 7 precincts. Re precinct 16, chairman Carlos Sampang testified that “due to our confusion, sir, the
votes of Taruc and Tiglao
were interchanged” and Taruc should be given
zero votes and Tiglao 28, not 25,votes as originally
prayed in the petition for correction.  (t.s.n. Jan. 27,
1970, pp. 13-14).  The Pampanga court however ordered the correction by crediting Tiglao with 25 votes instead of zero and ordered no
correction in Taruc’s votes. Re Precinct 18, LP
inspector Francisco Labao testified that “we
committed an error, the (80) votes intended for Tiglao
were registered for Taruc.” (Idem, p. 16). The Pampanga
court ordered the correction to credit Tiglao with 80
votes instead of zero and likewise ordered no correction in Taruc’s
votes.  This precinct is not involved in
the case at bar, since the said court, in its second order of Jan. 29, 1970 set
aside its first correction order of Jan. 28, 1970 for this precinct, due to its
having been already passed upon by Comelec which had
ordered Tiglao credited therein with 36 votes instead
of zero.

^[7] “SECTION
154.  Alterations in 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.”

^[8] Dizon vs. Prov. Board of
Canvassers, 52 Phil. 47 (1928); Aguilar vs. Navarro, 55 Phil. 898
(1931); Clarin vs. Alo,
94 Phil. 432 (1954); Astilla vs. Asuncion,
L-22246, Feb. 19, 1964, 10
SCRA 456.

^[9] Villaon vs. Arrieta,
L-29177, Sept. 30, 1969, 29
SCRA 671.

^[10] Ordoveza vs. Raymundo, 63
Phil. 275 (1936); see also Ocampo vs. Sanchez,
97 Phil. 472 (1955); Ronquillo vs. Marasigan, 5 SCRA 304 (May 31, 1962); Justice Barredo’s concurring opinion in Estrada vs. Sto. Domingo, 28 SCRA, 890, 933 (July 29, 1969).

10-a L-16409, Nov. 29, 1960.

11 L-28374, Dec.
29, 1967; 21 SCRA 1514.

12 Supra, fn. 8; see Benitez vs. Paredes and Dizon, 52 Phil. 1
(1928).

13 L-31252, Dec.
22, 1969; 30 SCRA 754.

14 Luzon Surety Co., Inc. vs. Beson, L-26865-66, Jan.
30, 1970, 31 SCRA 313 and cases cited.

15 See Macabingkil vs.
Yatco, L-23174, Sept. 18, 1967, 21 SCRA 150 and cases cited.

16 L-11837, November
29, 1960, 60 O.G., p. 6387.

17 L-19051, July
28, 1969; 28 SCRA 829.

18 Under sections 163 and 168 of the Revised Election
Code.

19 52 Phil. 1 (1928).

20 52 Phil. 47 (1928); see fn. 8; Rabe
vs. Comelec, 108 Phil. 260 (May 25, 1960).

21 Article VIII, section 13 of the Constitution.

22 1 Moran’s Rules of Court, 1970 Ed., p. 100, cit. Bustos vs. Lucero, 81 Phil. 640; emphasis furnished.

23 43 Phil. 333 (1922).

24 As distinguished from testimonial and
circumstantial evidence. Wigmore, on Evidence, 3rd.
Ed., sec. 1150, prefers the term “autoptic
proference“, indicating the inspection by
the tribunal of the thing itself and its condition, (in this case, the
ballots themselves and what appears thereon), since the term “real
evidence” has previously been used by other writers to refer to “any
fact about a material or corporate object, e. g. a book or a human foot, whether
produced in court or not.”

25 Cawa vs. del
Rosario, 108 Phil. 520 (May 30, 1960).

26 See Board of Inspectors vs. Piccio, 81 Phil. 577 (1948); Albano
vs. Prov. Bd. of Canvassers, 5 SCRA 13 (May 10, 1962).

27 Supra, paragraph 2.

28 Solidum vs. Macalalag, L-28666, May
20, 1969, 28 SCRA 200, citing Dizon,
supra, fn. 20; notes in parentheses ours.

29 Board of Election Inspectors of Bongabon
vs. Sison, 55 Phil. 914 (1931).

30 “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.
Notice of such proceeding shall be given to all candidates affected.”

31 L-28455, Feb.
10, 1968; 22 SCRA 539.

32 L-28517, Feb.
21, 1968; 22 SCRA 662.

33 Resolution of Feb. 20, 1962, Chiongbian vs.
Comelec, L-19202; Pacis vs.
Comelec, L-29026, September 28, 1968; 25 SCRA 377.

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