G.R. No. L-28539. March 30, 1968
SALVADOR Q. PEDIDO AND THE FIRST MUNICIPAL BOARD OF CANVASSERS FOR PIODURAN, ALBAY, PETITIONERS, VS. COMMISSION ON ELECTIONS, ATTY. GERTRUDO KALAMBAKAL, ATTY. BARBARA PORTUGAL,…
SANCHEZ, J.:
Certiorari to annul the proclamation of respondent Protesto Pavia as Mayor-elect of
the Municipality of Pioduran, Albay.
The present petition stems from facts following:
Candidates for Mayor of the Municipality of Pioduran
in the November 14, 1967 elections were reelectionist
petitioner Salvador Q. Pedido and respondent Protesto Pavia.
On December 13, 1967, the municipal board of canvassers, composed
of Vice Mayor Domingo P. Cadag, chairman; and Salazar
Floranza, Edmundo Sequitin, Luis Bagamasbad, Ildefonso Nunez, Bernardino Cortez, Mario Tarog and Justinian Perez, members (hereinafter to be
referred to as the first board), convened to canvass the election
returns for said municipality. After
that board had canvasses 27 precincts, and “upon opening the 28th Election
Return,” the board found that “the said Election Return for Precinct
No. 28 was colored white with serial number 439026, instead of the usual pink
color with serial number 439011.” Objection to said return was thereupon
raised by board member Salazar Floranza. Respondent Barbara Portugal, local Comelec Registrar, intervened and asked the board to
proceed with the counting of the questionable election return. The board finally sustained Salazar, resolved
to send back to the board of inspectors of Precinct 28 the said election return
“to explain the discrepancy.”
All the members left except member Ildefonso Nuñez.
On December 14, 1987,
Portugal directed
the first board to convene anew and continue with the canvass. The board refused. Whereupon, Portugal
named a new board of canvassers (the second board) composed of
Mauricio Casimiro, chairman; and Eugenio
Nieva, Gabriel Acabado,
Tito Pajes, Salvador Espinas
and Lourdes Gnilo, members. This new board used the same tally sheet by
verifying it with the election returns presented by the municipal
treasurer. The second board completed
its work.
On the same day – December 14 – the second board, together with Ildefonso Nuñez of the first
board, signed both the tally sheet and the certificate of canvass and
proclamation. Said certificate and the
tally sheet show that respondent Protesto Pavia garnered 2,143 votes as against petitioner Salvador
Q. Pedido who obtained 2,086 votes. The second board, with Nuñez,
proclaimed Protesto Pavia
Mayor-elect.
On December 19, 1967, respondent Commission on Elections (Comelec) – concerned with the delay in proclamation
– resolved to direct that an attorney of its Law Department proceed immediately
to Pioduran, Albay, and
bring with him Comelec’s copy of the election return
from Precinct 28 for the use of the canvassing board of said municipality. The resolution explicitly directed said
attorney “to supervise the canvass and proclamation with the authority to
suspend recalcitrant members of the municipal board of canvassers and appoint
their substitutes.” Named as such supervising attorney was respondent Gertrudo Kalambakal.
Meanwhile, on December
22, 1967, the first board, whose members were suspended by Election
Registrar Portugal,
convened again. The first board then
claimed that the board of inspectors of Precinct 28 failed to explain the
discrepancy in color and serial number of the election return from said precinct. This first board did not notify the municipal
treasurer who was in possession of the election returns and the proclamation
paper and tally sheets used during the canvass of December 13, 1967.
Neither was the election registrar notified. The board’s session was held in the house of
petitioner and reelectionist Mayor Salvador Q. Pedido, without Comelec
supervision, without the election returns or any of the documents or any
official forms being produced thereat by the municipal treasurer. The minutes of said board for that day
(December 22) show that the canvassers just “agreed to take into
consideration whatever figure or information contained in the questioned
Election Return of Precinct No. 28,” and “then continued to get the
sum total of each candidate as per their noted record
during the first meeting.”[1]
The aforesaid first board prepared an improvised tally sheet and proclamation
paper without seeing the election returns.
The proclamation of petitioner Salvador Q. Pedido
made by the first board on this date, December 22, is found in the last paragraph
of the minutes of the board. This
proclamation was merely based on the improvised tally which shows the following
votes for Mayor: Petitioner Salvador Q.
Pedido, 2,131 votes; respondent Protesto Pavia, 2,098
votes.
On December 27, 1967,
Gertrudo Kalambakal, Comelec’s Supervisor, conferred with the municipal
treasurer, the election registrar, and the municipal secretary of Pioduran. On that
day, Supervisor Kalambakal issued an order – subject
to Comelec confirmation -(a) setting aside the
proclamation of December 14, 1967 made by the second board, because the same
was without prior knowledge or confirmation by the Commission, and also
because of the resolution of December 19, 1967 requiring the canvassing board
to use in its canvass Comelec’s copy of the election
return for Precinct 28; (b) declaring “null and void” the
proclamation made by the first board on December 22, 1967, for the reasons that
there was lack of proper notice to the election registrar of Pioduran (in violation of Comelec’s
standing instructions to all canvassing boards) and also to the municipal
treasurer who had all the election documents and paraphernalia to be used as
basis for preparing the tally sheet and certificate of canvass and
proclamation; and that the meeting of the first board was held in the Mayor’s
house.
That same day, Kalambakal directed the
first board, which convened on December 13 and December 22, to convene anew at
10:00 a. m. the next day, December 28, 1967, at the session
hall. At 10:00 a.m. of that day, the
canvassers absented themselves; only their chairman, Domingo P. Cadag, was present.
The meeting of the board was postponed to 1:00
o’clock in the afternoon. At
2:00 p.m., again solely chairman Cadag appeared. Cadag vigorously objected to reconvening the board,
insisted that the canvass and proclamation of December 22, 1967 made by the first board be respected.
Faced by the recalcitrance of the members of the first board to
appear and the adamant attitude of the chairman, Kalambakal
suspended all the members of the said first board. Be substituted them by another board of
canvassers (the third board) who are qualified voters, as
recommended by the municipal treasurer, viz: Barbara Portugal, chairman; and Avelino Libag, Mrs. Loreto C.
Portugal, Mrs. Fe A. Medrano, Osmundo Oyales, Abundio D. Luna, and Regalado Arranza, members.
On the same day, this third board canvassed the returns from all
the precincts. However, they used Comelec’s copy of the election return from Precinct 28,
pursuant to Comelec’s directive of December 19, 1967. The third board’s
certificate of canvass and proclamation of December 28, 1967 and the tally sheet show that
respondent Protesto Pavia
with 2,143 votes won over petitioner Salvador Q. Pedido
who obtained 2,086 votes.
Given the discrepancy between the votes appearing in the first
board’s improvised tally of December
22, 1967 (Pedido: 2,131 votes; Pavia: 2,098 votes) and the third board’s
certificate of canvass and proclamation of December 28, 1967 (Pavia: 2,143 votes; Pedido: 2,086 votes, it will be of interest to
examine the reason therefor.
There are three tally sheets:
the tally sheet used in the December 13 canvass by the first board and
also in the December 14 canvass by the second board; the improvised tally sheet
of the first board on December 22; and the tally sheet prepared by the third
board in the December 28 canvass.
The following tabulation, appearing on page 11 of Comelec’s answer to the petition herein, explains how
petitioner Salvador Q. Pedido was made to win in the
December 22 proclamation:[2]
“IMPROVISED TALLY SHEET TALLY
SHEETS
(Made in the December 22 (Used
by the first board on
meeting of the first board, December
13 and by the second
Annex 9) board
on December 14 – Annex 2;
and Annex 11, the tally sheet used
by the
third board)
Pct. 7 : Pct. 8 : Total Pct. 7 : Pct. 8 : Total
(31 pcts.)
(31 pcts.)
PAVIA,
P. : 193 : 85 : 2,098 217 : 106 : 2,143
PEDIDO,
S. : 145 : 94 : 2, 131 121 : 73 : 2,086
DIFFERENCE:
PAVIA – 217
votes, per Annexes ‘2’ and ’11’
193 votes, per
Annex ‘9’
24 votes deducted in Pct. 7
– 106
votes, per Annexes ‘2’ and ’11’
85 votes, per Annex ‘9’
21 votes deducted in Pct. 8
– 2,143
votes, per Annexes ‘2’ and ’11’
2 098 votes, per
Annex ‘9’
45 votes – total deduction for Pavia
PEDIDO – 121 votes, per Annexes ‘2’ and ’11’
145 votes, per
Annex ‘9’
24 votes added in Pct 7
– 73
votes, per Annexes ‘2’ and ’11’
94 votes, per Annex ‘9’
21 votes added in Pct 8
– 2,086
votes, per Annexes ‘2’ and ’11’
2,131 votes, per Annex ‘9’
45 votes total increase for Pedido“
That the figures appearing in the tally sheets, Annexes 2 and 11 of
Comelec’s answer, in respect of Precincts 7 and 8 are
correct, is confirmed by the fact that a photostat of
Comelec’s copy of the election returns for said
Precincts 7 and 8 show the following:
Precinct 7: “Pavia, Protesto, Two Hundred
Seventeen – – 217 votes”; “Pedido,
Salvador, One Hundred Twenty-One – – 121 votes”; and Precinct No. 8: “Pavia, Protesto, one hundred six – – 106″; “Pedido, Salvador, seventy-three – – 73.”[3]
On December 30, 1967,
Comelec’s Supervisor, Gertrudo
Kalambakal, returned to Manila,
submitted to Comelec the certificate of canvass and
proclamation and tally sheet prepared by the third board on December 28, 1967, and made his
report. Incidentally, the tally sheet
and certificate of canvass and proclamation made by the first board on December 22, 1967 was received by Comelec on January
4, 1968.
On December 30, 1967,
petitioner Salvador Q. Pedido took his oath of
office. It is reported, too, that on January 1, 1968, respondent Protesto Pavia also took his
oath.
On January 5, 1968, Comelec resolved
that the certificate of canvass and proclamation dated December 28, 1967
“be adopted as the valid certificate and that all acts taken by Atty. Gertrudo Kalambakal in connection
with said canvass and proclamation are hereby confirmed. “
Challenged here as null and void is the proclamation of
respondent Protesto Pavia. The stress of petitioners’ argument is that
since petitioner Salvador Q. Pedido was already
proclaimed by the first board on December
22, 1967, Comelec has “lost
jurisdiction over his person and any question regarding his
election.” They submit that
respondent Protesto Pavia’s
remedy is “an election protest before our courts,” and that Comelec’s resolution of January 5, 1968 “long after Pedido
was proclaimed and had taken his oath,” was issued “beyond its
jurisdiction.”
1. We are called upon to
resolve the decisive question: Is the December 22, 1967 proclamation made
by the first board valid? For two reasons, the answer must be in the negative.
First. The duty of
the municipal board of canvassers to count the votes cast for candidates for
municipal offices as shown in all the election returns produced by the
municipal treasurer, cannot be avoided.[4]
Repeatedly has this Court ruled that the board of canvassers is to be guided by
election returns transmitted to it “which are in due form.”
Indeed, the board must be “satisfied of the genuineness of the
returns.”[5] A
canvass made on incomplete returns may be annulled.[6]
And yet, at the session of the first board of December 22, the members
thereof made an improvised tally and proclaimed Pedido
winner – without examining the election returns, or a single
election return, for that matter. They
did not have and could not have the returns before them. Because, those documents were in the possession
of the municipal treasurer. And, the
municipal treasurer was not notified of that canvass. They did not even have the tally sheets used
in their December 13 session. All that
the board did was “to get the sum total
of each candidate as per their noted
record during the first meeting,” plus
“whatever figure or information obtained
in the questioned Election Return of Precinct
No. 28.”[7]
Indeed, the proclamation of Pedido as Mayor-elect was
based – quoting from the minutes of the first board’s meeting of December 22 –
“on the correct sum total as shown by the records of the Board of
Canvassers” – not on the election returns.
The net result is that no canvass at all was made on December
22. Without canvass, there can be no
proclamation by the first board.
We cannot afford to depart from the wise rule that canvass can
only be made from the election returns.
Without the returns, what is there to canvass? The mischief that stems from a contrary rule
need not be elaborately essayed. Suffice
it to say that the flood gates to fraud will be wide open. Indeed, temporizing with the first board’s
so-called “noted record [of votes made by them] during the first
meeting,” to arrive at the number of votes cast for the candidates, must
be vigorously condemned. A high regard
for the people’s will expressed at the polls is the hallmark of our election
law.
On this score alone, that proclamation – without canvass – of December 22, 1967 must be nullified.
Second. The alleged
tally used in the first board’s meeting of December 22 is admittedly in an
improvised form. Of course, that tally
was not based on any election return produced before the board. But more important is that there is an
obvious fabrication of figures for the two candidates for Mayor. It will be recalled that the minutes of the
meeting of the same first board of December 13, 1967 shows that by 3:00 o’clock
in the afternoon of that day, they have already canvassed 27 precincts, which
includes Precincts 7 and 8, and had to stop only when they reached “the
28th Precinct Return.”
An examination of the so-called tally sheet prepared by the first
board on that day (December 22) covering Precincts 7 and 8 reveals
figure-manipulation in those precincts.
For, as shown in the tally of December 13 made by the same first board,
in Precinct No. 7, Pedido received 121 votes, and in
Precinct No. 8, 73 votes. In the
improvised tally sheet, as aforesaid, Pedido’s votes
were upped to 145 votes in Precinct 7, and to 94 votes in Precinct 8. There is an excess of 45 votes to favor Pedido. In turn, in
the tally sheet of December 13, Pavia
got 217 votes in Precinct 7, and 106 votes in Precinct 8. In the improvised tally sheet of December 22,
Pavia‘s votes shrank to 193 votes in Precinct 7, and to 85 votes
in Precinct 8. Pavia thus was made to lose 45
votes.
The members of that first board knew all along the votes tallied
for each of the two contending mayoralty candidates. Except for these two precincts, 7 and 8, the
votes of the two in all the three tallies remained as they were; and except for
the office of Mayor, there was no change in the winning column for all the
other candidates for municipal offices.
There was a deliberate attempt by the first board to frustrate the
people’s will. To do so, the first board
had to conjure up the scheme of juggling figures that would make Pedido the Mayor-elect.
They were too eager to proclaim him.
They probably thought then, as they urge upon us now, that once Pedido is proclaimed, the other candidate will be left without
recourse except to file an election protest.
As we have pointedly stated in Ong vs.
Commission on Elections, supra:
“x x x But
to be accentuated is the cornerstone tenet in elections of public officers
that the choice of the people expressed at the polls should not be frustrated
by wrongful acts which can be remedied.
xxx. A defeated candidate may
grab proclamation, take his seat, while he keeps the victim out by a long drawn
expensive election protest – if protest the latter can afford. x x x. Important is that
a canvass and proclamation be made on the basis of authentic returns. The end to be achieved more than compensates
the effort, money, and time expended.”
As we draw enlightenment gained from experience on the
“grab-the proclamation-prolong-the-protest slogan” indulged in, in
election after election, we must vigorously reject illegal proclamation to
prevent it from congealing into a pattern of conduct in elections. Appropriately to be recalled at this point is
the Incisive reminder of Mr. Chief Justice Cesar Bengzon
in Lagumbay vs. Climaco,
supra, that “[t]he well-known delay in the adjudication of election
protests often gave the successful contestant a mere pyrrhic victory, i.e., a
vindication when the term of office is about to expire, or has expired.”
And again, we say that the first board’s proclamation of December
22, 1967 is null and void.
2. By Section 3 of the
Revised Election Code, Comelec has “direct and
immediate supervision” over the municipal board of canvassers. That statutory provision empowers Comelec to suspend from the performance of their duties
any member of the board of canvassers “who shall fail to comply with its
instructions, orders, decisions, or rulings and appoint their temporary
substitutes.” Jurisprudence has since stabilized that power.[8]
This, of course, is in pursuance of Comelec’s
constitutionally prescribed duty to enforce “all laws relative to the conduct
of elections,” to decide “all administrative questions, affecting
elections,” and to insure “free, orderly, and honest elections.”[9]
Paying full respect to these precepts, Comelec gave
express authority to Gertrudo Kalambakal
to supervise the canvass and proclamation with power to suspend the
recalcitrant members of the board of canvassers of Pioduran
and to appoint their substitutes. We see
no illegality in Comelecs act. Effective administration and enforcement of
the election laws require it. The
Commissioners are not expected to do all the functions of office personally. Comelec should not
be hamstrung in its efforts to promptly dispose of election cases before
it. After all, the act of the
subordinate official may be annulled or reversed by Comelec.
That Kalambakal complied with his duty
is beyond debate. He gave a chance to
the first board to convene. He was
patient enough to postpone the canvass and proclamation to give the disobedient
members of the first board time to come.
But they did not, not even for the second time. Instead their Chairman adamantly stood by the
December 22 proclamation made by the said board. Kalambakal
correctly suspended them and appointed a new board. And this is the board that proclaimed
respondent Protesto Pavia.
We are unable to join petitioners in their view that simply
because petitioner Pedido was proclaimed Mayor, Comelec had lost jurisdiction to annul the same. A rule of frequent application is that Comelec is with authority to annul any canvass and
proclamation which was illegally made.[10]
So that, when Comelec, in its resolution of January
5, 1968, approved the order of Comelec Supervisor Kalambakal (issued in Pioduran),
which declared null and void the December 22 proclamation, and adopted the
certificate of canvass and proclamation of December 28, 1967 as “the valid
certificate” of canvass and proclamation, it certainly acted within its
jurisdiction.
For the reasons given, the petition for certiorari herein is
denied; the December 22, 1967 proclamation of petitioner Salvador Q. Pedido as Mayor-elect of the Municipality of Pioduran, Albay, as well as his
oath of office as such Mayor-elect, are hereby declared null and void; the
certificate of canvass and proclamation made on December 28, 1967 whereunder respondent Protesto Pavia was proclaimed Mayor-elect of the said Municipality
of Pioduran, Albay, is
hereby declared valid, in full force and effect; and the resolution of the
Commission on Elections of January 5, 1968 is hereby affirmed.
Costs against petitioners.
SO ORDERED.
Reyes, Acting C.J., Dizon, Bengzon, Zaldivar, Ruiz Castro,
Angeles, and Fernando, JJ., concur.
Makalintal, J., did not take part.
[1]
Annex 7-A, Comelec’s answer.
[2]
The annexes in the tabulation are those from Comelec’s
answer.
[3] See
Annexes 15 and 15-A of respondent Pavia‘s memorandum.
[4]
Section 168, Revised Election Code.
[5] Ong vs. Commission on Elections, G.R. No. L-28415,
January 29, 1968, citing Nacionalista Party vs.
Commission on Elections, 85 Phil. 149, 157, 158; Lagumbay
vs. Climaco, G.R. No. L-25444, January 31, 1966. See also: Espino vs. Zaldivar, G.R. No. L-22325, December 11, 1967; Abes vs.
Commission on Elections, G.R. No. L-28348, December 15, 1967.
[6] Abes vs. Commission on Elections, supra,
citing Abendante vs. Relato,
94 Phil. 8, 15.
[7]
Annex 7-A of Comelec’s answer (Minutes of the meeting
of the first board on December 22, 1967).
[8] Espino vs. Zaldivar, supra. See also: Santos
vs. Commission on Elections, G.R. No. L-16413, January 26, 1960.
[9]
Section 2, Article X of the Constitution; Sumulong vs.
Commission on Elections, 73 Phil. 288, 291.
[10] Mintu vs. Enage, G.R. No. L-1836,
December 31, 1947; Chiongbian vs. Commission on Elections, G.R. No. L-19202,
December 11, 1961; Olano vs. Ronquil G.R. No.
L-17912, May 31, 1963; Santos
vs. Commission on Elections, supra; Javier vs.
Commission on Elections, G.R. No. L-22248, January 30, 1965; Espino vs.
Zaldivar, supra.