G.R. No. L-28455. February 10, 1968
PANTALEON PACIS, PETITIONER, VS. COMMISSION ON ELECTIONS, ATANACIO NEGRE, AND ATANACIO RAMIRO, RESPONDENTS.
SANCHEZ, J.:
Once again, this Court is faced with the recurring problem of
“grab-the-proclamation,” and let the victimized candidate face the
hurdle of a long drawn expensive election protest which may prove insuperable,
if not useless. For, one set of board of
canvassers had, on November 18, 1967
– ratified by the same board on November 23 – proclaimed Pantaleon
Pacis, Mayor-elect of the municipality
of Sanchez Mira, Cagayan. Then on December 28, 1967, another board of
canvassers, upon authority of the Commission on Elections (Comelec,
subsequently proclaimed Atanacio Negre,
the opposing candidate, Mayor-elect. In
between was the petition filed
by Negre on November
29, 1967 in the Court of First Instance of Cagayan,[1]
inter alia, to annul the canvass and
proclamation of Pacis.
Gathered from the maze of pleadings, documents and memoranda filed, are the events here to be related.
In the 1963 municipal
elections of Sanchez Mira, the following – at the time all members of the
Liberal Party – were elected: (1) Mayor
– Pantaleon Pacis; (2) Vice
Mayor – Manuel Franco; and Councilors, (1) Patrocinio Pacris, (2) Presidio Raralio, (3) Alfredo Cac, (4) Eleuterio Mata, (5) Fausto Malto, (6) Alfonso Ilac, (7) Francisco
Casil, and (8) Porfirio Macugay.
Upon the death of Vice Mayor Manuel Franco on November 15, 1967, Patrocinio Pacris, No. 1 Councilor,
took his oath of office as Vice Mayor.
On November 17, in Pacris‘ replacement, the
Provincial Governor appointed Segundo Acdal as councilor.
Councilor Fausto Malta
ran for Vice Mayor in the 1967 elections.
He was replaced as such
councilor by Jose Cack, on appointment also by the
Provincial Governor dated November 1,
1967.
As of November 17, 1967, the Sanchez Mira municipal council was
composed of: (1) Mayor Pantaleon Pacis, candidate for
reelection; Vice Mayor Patrocinio Pacris, candidate
for councilor; and Councilors, (1) Presidio Raralio, (2) Alfredo Cac, (3) Alfonso Ilac, Francisco
Casil, and (5) Porfirio Macugay, all candidates for re-election; and (6) Eleuterio Mata, (7) Segundo Acdal,
appointed councilor, and (8) Jose Cack, appointed
councilor, all of whom did not run for any office.
Pantaleon Pacis,
Patrocinio Pacris, Alfredo Cac and Presidio Raralio who in
the 1963 elections ran as Liberals (LP), presented their candidacies as Nacionalistas
(NP) in the 1967 elections. Alfonso Ilac, Francisco Casil, and Porfirio Macugay, who sought
reelection in 1967, remained with the LP, along with EIeuterio
Mata, who did not run for any office.
Therefore, to be substituted in the 1967 canvassing board were: (1) Mayor Pantaleon
Pacis, NP; (2) Vice Mayor Patrocinio
Pacris, NP; and Councilors (3) Presidio Raralio, NP; (4) Alfredo Cac, NP;
(5) Alfonso Ilac, LP; (6) Francisco Casil, LP; and (7) Porfirio Macugay, LP. And this, because council members (1)
Councilor Eleuterio Mata, (2) Appointive Councilor Segundo
Acdal, and (3) Appointive Councilor Jose Cack, did not seek elective office.
On November 18, 1967, the
municipal board of canvassers composed of:
(1) Rafael L. Pacis, vice Mayor Pantaleon Pacis; (2) Bernardino Dungan, vice Vice Mayor Manuel Franco, deceased; (3) Jose
Cack, councilor appointed in place of Fausto Malto; (4) Benito Agdeppa, vice Councilor Alfredo Cac;
(5) Segundo Acdal, councilor appointed in place of Patrocinio Pacris; and (6) Leocadio Battung, vice Councilor
Presidio Raralio – all NP recommendees
appointed by Federico Q. Galapia, Comelec
registrar of Sanchez Mira, “by authority of the Commission” – met,
canvassed the returns from all the precincts, and proclaimed Pantaleon Pacis as Mayor-elect.
On November 19, 1967,
respondents Atanacio Negre,
candidate for Mayor, and Atanacio Ramiro, chairman of
the LP chapter of Sanchez Mira, filed an urgent petition (dated November 18)
with Comelec[2] to suspend or annul the canvass of votes
and/or to annul the election returns from the precincts in barrios Namuac, Nagrangtayan and Callungan; and to direct proclamation of the winner
“on the basis of the election returns in the uncontested precincts.”
They charged that incumbent Mayor Pantaleon Pacis, through terrorism, threats and intimidation, forcibly
seized the ballot boxes, keys, tally sheets and other election documents pertaining to the precincts in said barrios, kept them
for mere than forty-eight hours before they came into the custody of the
municipal treasurer. They also averred
that immediately after elections, the three barrios were turned into a “no
man’s land,” blockaded at the instance of Pacis
with the aid of his own policemen and armed goons, after he had learned that he
lost the election to Negre; that when respondent
Ramiro, together with then Vice Mayor Manuel Franco, Negre’s
campaign manager, and Capt. Macario Basco (Ret.)
went to the said barrios to
inquire why the ballet boxes, keys,
tally sheets and election documents had not yet been delivered to the municipal
treasurer, Franco was gunned down at Namuac, the
Mayor’s own barrio, by the bodyguards and goons of the Mayor in the latter’s
presence, as a result of which Franco died instantly, and
Capt. Basco was critically wounded;
and that the manipulated and tampered election returns from the three barrios
do not reflect the true will of the electorate therein.
On November
19, 1967, acting on the foregoing petition, Comelec resolved “to order
the suspension of the canvass and proceedings of the municipal board of
canvassers” and the “proclamation of the winning candidates.”
Meanwhile, on November 17,
1967, Comelec telegraphed an order to the municipal treasurer directing him to name as substitutes to fill vacancies in the board of canvassers,
from suitable registered voters
belonging to the political party to which the disqualified members belonged
“when elected in
1963″; to report, the
appointments to the Commission for confirmation;
and to allow said board to
convene pending confirmation.
On November
22, 1967, the municipal treasurer, having received the foregoing telegraphic instructions,
appointed as substitute members of the board of canvassers the same six (6) NPs named by Comelec registrar Galapia
and heretofore mentioned.
Comelec’s resolution of November 19 was
relayed by wire to the municipal treasurer and to the canvassing board on
November 20. But this six-man board –
upon the claim that said telegram was not received until November 24 – on
November 23, 1967, resolved “to adopt, confirm and ratify their actuations
acting as municipal board of canvassers of Sanchez Mira, on November 18,
1967,” including the proclamation.
On December 1, 1967,
Comelec confirmed the November 22 appointments of
substitute members made by the treasurer.
On December 8, 1967,
Negre and Ramiro filed with Comelec
a supplemental petition to their first petition of November 19. They alleged that subsequent to the filing of
the first petition, they came to know of the illegal canvassing and
proclamation of November 18 by an illegally constituted board of canvassers;
that Ramiro, LP chairman, was neither notified nor requested to submit names of LP
substitute canvassers; that the proclamation was done behind closed doors in
the municipal building of Sanchez Mira without notice to the LP; that while the
proclamation was
dated November 18, canvassing continued “up to November 19”;[3]
and that the November 18 proclamation was null and void. Said respondents sought a declaration that
the board of canvassers was illegally constituted; and
that the canvass and proclamation of Pacis was null
and void. They also prayed that Comelec order the appointment of a new board to canvass the
election returns from all precincts, except Precincts 18, 19, 20, 21, 22
and 24, and to proclaim the winner based on the returns from the uncontested
precincts.
On December 24, 1967,
Comelec en banc rendered its decision
on Negre’s petition (Case No. PR-578)
to suspend or annul the canvass and proclamation in the municipality of Sanchez Mira. In the dispositive
part, Comelec resolved:
“1. To declare null and void the canvass and
proclamation made on November 23,
1967 because the Board of Canvassers was illegally constituted;
2. To
order the Municipal Treasurer of Sanchez Mira, Cagayan
to bring the election returns and other documents to be used in connection with
the canvass of said municipality to the main office of the Commission in Manila
on December 27, 1967 at 10:00 a.m., and in the event that the Municipal
Treasurer should fail to do so, the Board of Canvassers is hereby directed to use the Commission on Elections’ copy of the returns in connection with the
said canvass and proclamation;
3. To
order the Municipal Board of Canvassers as
legally constituted to convene at the Main Office of the Commission on
December 27, 1967 at 10:00 in the morning for the purpose of canvassing and
proclaiming the winning candidates in the elections of November 14, 1967 in
Sanchez Mira, Cagayan; x x x.
The foregoing resolution was thereafter amended by Comelec
in the sense that “the canvass shall continue as ordered in said decision
but proclamation shall be held in abeyance until further orders of this
Commission.”
Meanwhile, on November
29, 1967, eleven
days after the proclamation of November 18, respondent Atanacio
Negre, as adverted
to at
the beginning, filed a petition
in the Court of First Instance of Cagayan.[4] He there alleged that the appointment of the
members of the canvassing board, which on November 18 proclaimed Pacis, was contrary
to law, because it was without proper authority and consent of Comelec; that the LP was not asked to recommend substitute
members of said board for the LP councilors who were seeking reelection; that
that board illegally convened, canvassed and proclaimed Pacis;
that the proclamation was held behind closed doors without notice to the LP;
that in Precincts 18, 19, 20, 21, 22 and 24, election returns and other papers
including the ballots, were falsified and tampered with by Pacis;
that to consummate this, Pacis caused to be gunned
down by his
armed goons the then Vice Mayor
Manuel Franco resulting in his instant death, and also Capt. Macario Basco who was critically
wounded; that whereupon, Pacis forcibly seized and
withheld for more than two days the pertinent ballot boxes which were open and
unsealed, together with their keys, election returns, tally sheets, and other
election paraphernalia, giving him undisturbed freedom to tamper and falsify
them; that said ballot boxes, keys, documents and paraphernalia were delivered
to the municipal treasurer by the Philippine Constabulary only on November 17,
1967; that as a result of the
tampering and falsification committed by Pacis, at
least 270 votes cast in favor of Negre – decisive of
the mayoralty election – in Precincts 18, 19, 21, and 22 were not legally
counted; that by reason of the illegal, dishonest and fraudulent electoral
practices just mentioned, and the violence and terrorism referred
to, Negre “impugns and protests the election returns and ballots cast in Precincts Nos. 18, 19, 20,
21, 22 and 24, as well as the proclamation” of Pacis. Negre prayed for a
preliminary injunction to restrain Pacis from
assuming the office of Municipal
Mayor on January 1, 1968 “pending
resolution of the validity of the proclamation“; that after due
hearing, said proclamation be declared null and void ab
initio; that all the votes cast in the above
contested precincts be annulled; that an order issue directing that
another board of canvassers convene, in
accordance with law, “to conduct a canvass of the returns
in all other precincts which were uncontested
to determine the true result of the legitimate votes cast therein”; and
that thereafter, Negre be declared to have obtained the highest number of votes
and proclaimed as the duly elected Mayor.
On December
16, 1967, Pacis answered the foregoing petition. He denied acts of irregularities, terrorism
and intimidation. He asserted that the
board, which proclaimed him Mayor-elect, was
duly constituted. One of his
affirmative defenses was the “pendency of
another action between
the same parties for the same cause”,
Pacis then referring to Negre’s
and Ramiro’s petition on November 19, 1967 and the supplemental petition of
December 8, 1967, filed with Comelec, heretofore
adverted to. Pacis
also claimed that Negre’s petition before the Court
of First Instance stated no valid cause of action
and was premature. In his counter-protest covering Precincts 1
to 15, inclusive, and 23, Pacis in turn charged vote
buying, terrorism, frauds, and intimidation, with the open employment of
heavily armed goons.
Dated December
22, 1967, was Negre’s amended petition in CFI Case
56-S. It reiterated the allegations of
the original petition. The added
averment was that Pacis was “ready and prepared to assume office as Mayor of Sanchez
Mira, Cagayan on January 1, 1968.” Negre
asked for injunction and payment of damages.
We come to the case now
before us.
On December
27, 1967, Pantaleon Pacis filed the present petition before this Court
against the Comelec, Negre
and Ramiro, for certiorari with a
prayer for preliminary injunction.
In essence, the petition avers
that Pacis was lawfully proclaimed
by the board of canvassers on November 23; that, Negre
having filed an election protest, Comelec lost
jurisdiction to hear Negre’s and Ramiro’s petition of November 19 as supplemented on December 8, seeking annulment of Pacis‘ proclamation; that in consequence, Comelec’s resolution of December 24, the dispositive
portion of which was hereinbefore
transcribed, is null and void.
Acting upon the foregoing petition,
this Court, on December 28, 1967, adopted the following resolution:
“Upon consideration of the petition for certiorari with a
prayer for a writ of
preliminary injunction in L-28455 (Pantaleon Pacis, petitioner, vs.
Commission on Elections, et al., respondents), the Court RESOLVED: (a) to issue a restraining order restraining
proclamation of the result of the second canvass ordered by the Commission on
Elections in it; resolution of December 24, 1967 in Case No. PR-578 of the
Commission on Elections (In Re: Petition to Suspend or Annul Canvass
and Proclamation in the Municipality of Sanchez Mira, Cagayan,
in the November 14, 1967 Elections: Atanacio Ramiro, in his capacity as Chairman of the Liberal Party of Sanchez Mira, Cagayan, and Atanacio Negre, petitioners, vs. Municipal Board of Canvassers, The
Municipal Treasurer, The Comelec Representative, all
of Sanchez Mira, Cagayan, respondents, Pantaleon Pacis, intervenor), until further orders of this Court; (b) to
direct respondents to file their answers to the herein petition not later than
the close of office hours on Wednesday, January 3, 1968; and (c) to set this
case for hearing on the merits on Friday, January 5, 1968, at 9:30 a.m.”
The restraining order
issued in pursuance of the foregoing
resolution was received at Comelec on December
28, 1967 at 5:20 p.m., allegedly five minutes after Negre’s
proclamation which was made at 5:15 p.m.
On December
29, 1967, Pacis came back to this Court praying for an amended
restraining order to set aside Negre’s proclamation.
On the same day, this
Court resolved –
“Upon consideration of
the urgent ex parte motion filed by
petitioner this day in L-28455 (Pantaleon Pacis, petitioner, vs. Commission on Elections, et al.,
respondents), the Court RESOLVED that a restraining order issue (1) suspending
the effect of the proclamation made of
the result of the second canvass
of December 28, 1967, ordered by the Commission on Elections in its resolution of December 24, 1967 in case No.
PR-578 of the Commission on Elections, and (2) restraining respondent Atanacio Negre from taking the oath of office, and/or from
assuming or performing the powers and duties of the Office of Municipal
Mayor of Sanchez Mira, Cagayan, until further orders from this Court.”
The second restraining
order was served upon Comelec at 7:40 p.m. on December 29, 1967. Admittedly, respondent Negre
was shown a copy of said restraining order at 5:00 o’clock p.m. on January 2, 1968.
Comelec’s return to the present
petition concedes that the board of canvassers of December 27 which proclaimed
Negre Mayor-elect was wholly composed of LP recommendees, viz: (1) Dominador B. Saludares (vice Pantaleon L. Pacis); (2) Manuel Aquino (vice
Manuel Franco); (3) Richard N. Eclarin (vice Fausto Malto); (4) Rogelio Bagasol (vice Porfirio Macugay); (5) Carlos Descalso
(vice Alfonso Ilac); (6) Atanacio
Ramiro, Sr. (vice Francisco Casil); (7) Rogelio Dadufalza (vice Alfredo Cac); (8)
Edwin Lacuanan (vice Patrocinio
Pacris); and (9) Eriberto Descalso (vice Presidio Raralio);
and avers that late in the afternoon of December 29, respondent Negre submitted his oath of office which was subscribed and
sworn to on December 28.
The answer of the private respondents, in turn, questions once
again the validity of the composition of the board of canvassers which
proclaimed Pacis as Mayor-elect. Attached thereto is an affidavit of Federico
Q. Galapia, Comelec
Registrar, dated November 28, which, inter alia,
states that in the morning of November 18, reelectionist
Mayor Pacis, with several heavily armed companions,
entered his (Galapia’s) house and over his protest
demanded that he sign the designation of the six members of the board of
canvassers; that he was so afraid, because he knew that Vice Mayor Franco was killed
and Capt. Basco was seriously wounded, that he acceded to
the Mayor’s demands; and that realizing that he had done wrong, he fled to
Manila on the same day to save his life.
Said private respondents aver that the so-called “protest”
which Negre filed in court was primarily to annul the
constitution of, and the illegal canvass and proclamation of Pacis made by, the board of canvassers; and that such
petition was made ad cautelam to meet
the deadline, if the petition with Comelec should
fail. They state that Negre was proclaimed Mayor-elect on
December 28, took his oath on the same day, and assumed office as Mayor. They ask for judgment dismissing the petition
and dissolving the restraining orders.
Pacis‘ reply to private respondents’
answer attributes to Negre and his armed goons the
killing on January 3, 1968
of one Dante Calon, a nephew of Pacis.
In his supplemental petition filed herein, Pacis
included as respondent the second board of
canvassers which proclaimed Negre on December
28. He avers that this board was created
without notice to all parties; that all the members thereof were LPs whose
names were submitted by respondent Atanacio Ramiro,
local LP chairman, to Comelec representative Roque Bello, on December 27; that
in the canvass made on December
27 by the second board, the returns in Precincts 18, 19, 21 and 22 were
arbitrarily excluded therefrom; and that all
proceedings in connection with this canvass are null and void. Petitioner,
accordingly, prays that Negre be restrained permanently from assuming office or
performing the powers and duties of Mayor.
In answer to the
supplemental petition, private respondents stress the fact that the present case
as well
as the
restraining orders are moot and academic, for Negre
had taken his oath and assumed and performed the functions of Mayor.
The case is now before us for decision en the merits. The issues tendered will be resolved seriatim.
1. A question of first
impression we are called upon to decide this:
Where a municipal councilor elected in the 1963 elections runs for Vice
Mayor in the elections of 1967, and the Provincial Governor appointed in his
place as such councilor another, may the latter be substituted as member of the
municipal board of canvassers for the 1967 elections?
This problem cropped up because Jose Cack,
NP, was named in place of Fausto Malto who was a councilor
elected in 1963 as an LP, and
who ran for Vice Mayor as such
in the 1967 elections. Private
respondents argue that Jose Cack should not sit in
the board of canvassers and should be substituted. Their reason is that Cack’s appointment violates
the provisions of Section 8 of Republic Act 5185 – effective September 12, 1967
– which requires that the provincial governor appoint as substitute a “qualified person belonging to the
political party or faction of the officer whom he is to replace upon recommendation of the said political party or
faction and who shall serve the unexpired term of office.”
The ratiocination thus advocated does not advance private respondents’
cause. First. Because such appointment
cannot be attacked in a collateral proceeding. We are not to inquire here into the reasons
or motivations which led to Cack’s appointment as
substitute councilor. We can, at best,
make surmises. It is not the function of this Court to
strip Cack of his rights and prerogatives as
substitute councilor without giving him opportunity to be heard. A healthy respect for due process will
prevent us from nullifying his appointment.
Second. Section 167 of the
Revised Election Code empowers Comelec to replace
with “registered voters of the same party,” members of the municipal
council who are candidates. Cack was not
a candidate. At the time of canvass, be was a member of the municipal
council. His replacement cannot be
authorized by law.
2. Was the proclamation of
petitioner Pantaleon Pacis
by the Board of canvassers on November 18, confirmed by resolution of the same
board on November 23, valid and binding?
With reference to the substitute members of the board which
proclaimed Pacis Mayor-elect, certain facts are
beyond debate. Their number is six: (1) Rafael Pacis;
(2) Bernardino Dungan; (3) Jose Cack;
(4) Benito Agdeppa; (5) Segundo Acdal;
and (6) Leocadio Battung. They were all NP recommendees. The LP had no representation in that
board. Nothing of record will prove that
the LP was asked
to recommend their substitutes. And yet,
three of the councilors to be substituted, namely, Alfonso Ilac,
Francisco Casil and Porfirio
Macugay, were LPs when they ran for office in 1963, as well as in 1967
when they presented their certificates of candidacy for reelection. Their substitutes must necessarily be drawn
from voters of the LP in compliance with codal
Section 167. On this score alone, the
board of canvassers, composed of six substitute members heretofore mentioned, was illegally
constituted.
Nor was notice of the November 18 canvass or of the board’s
meeting of November 23 ever sent to Councilor Eleuterio
Meta, LP, who did not run for reelection.
Naturally, he took no part in either.
Whether an LP or NP, Mata must be notified of the canvassing and
proclamation. He was, by law, entitled to sit in the
board of canvassers.[5]
We have recently held in Campos vs. Commission on Elections,
L-28439 (Resolution), December 29,
1967, that where a member of the board of canvassers designated by
law is excluded from the canvass by reason of which
he did not take part therein, the canvass and resulting proclamation are both
null and void.
We, accordingly, hold that the canvass and the proclamation of
petitioner Pantaleon Pacis
are both null and void.
3. But if the November
proclamation of petitioner Pantaleon Pacis as Mayor-elect is
null and void, the December proclamation of his opponent, Atanacio Negre, fares no better. The latter is as null and void as the former. The nine members of the board, which proclaimed
Negre, namely:
(1) Dominador Saludares;
(2) Carlos Descalso; (3) Atanacio
Ramiro, Sr.; (4) Richard Eclarin; (5) Rogelio Dadufalza; (6) Manuel Aquino; (7)
Rogelio Bagasol; (8) Edwin Lacuanan;
and (9) Eriberto Descalso,
were all appointed by Comelec’s representative Roque Bello on December 27, on
proposal made by respondent Atanacio Ramiro, local LP
chairman. And this, obviously because
both Comelec and respondents were of the belief that
since in the 1963 elections all of the elected municipal officials of Sanchez
Mira were LPs, the LP was entitled to propose the appointment of all the substitute
of those who ran as candidates in the 1967 elections.
We must have to state that the appointments of these members of
the board run smack against the doctrine laid down in Ibuna
vs. Commission on Elections, L-28328,
December 29, 1967, where this Court (three members expressing a different view)
ruled that what should govern in the appointment of a substitute is the
party status of the substituted elected official as of the time of his disqualification
to act as member
of the board of canvassers. Therefore, Pantaleon Pacis, Patrocinio Pacris, Alfredo Cac and Presidio Raralio, who
sought reelection in 1967 as NPs, should be replaced with registered voters of
the same party – NP.
The composition of this board suffers from another defect. Councilor Eleuterio
Mata, appointed Councilor Segundo Acdal, and
appointed Councilor Jose Cack did not take part in
that canvass and proclamation. The
record does not yield any excuse for their replacement. Stock should be taken of the fact that this
last canvass was effected in Manila,
very far from Sanchez Mira. Appropriate
notice should have been given these three.
And yet, they were not notified of said canvass and proclamation. Instead, Comelec
rushed the appointment of an all-LP board on December 27. Canvassing promptly started at about 11:30 a.m., and terminated at about 3:12 p.m. on that day, December 27.
Indeed, as in the November proclamation, haste characterized the
December proclamation. During the
canvass, the board was notified, formally and in open session, by counsel for Pacis that the present petition has been lodged with this
Court. He pleaded with Comelec and the board for time to enable this Court to act
on his prayer for preliminary injunction.
Comelec denied this motion. Proclamation, it was said, was made at 5:15 p.m. and barely five minutes afterwards
this Court’s restraining order reached Comelec.
The December proclamation of Negre is
open to attack from another direction.
The board of canvassers did not include in the canvass the returns from
Precincts 18, 19, 21 and 22. It is
to be borne in mind that the results
of the vote–counting from these four precincts are
decisive of the election.
It is true that in Espino vs. Zaldivar, L-22325, December 11, 1967, citing Nacionalista Party vs. Commission
on Elections, 85 Phil. 149, 158, we declared that the canvassing
board will not be compelled to canvass returns which are obviously
manufactured. This does not mean however
that the board and Comelec, when faced with this
situation, should right away disregard the votes cast in precincts where
returns were doctored. There are four
copies of official returns. Allegedly
both the municipal treasurer’s and Comelec’s copies
were tampered. But it was the duty
of the board to report the matter to Comelec. Comelec could then
hew to the line drawn in Canton
vs. Commission on Elections, 1967B Phild. 248, 255, where this Court declared that, in case
the election returns were tampered, “it is certainly within the power of the
Commission on Elections to issue such order as would ascertain the existence of
the genuine, authentic and untampered election returns.” Comelec
could acquire into the copies of the returns for the provincial treasurer. And if these copies are not authentic, Comelec should look into the copies of the returns in the
ballot boxes. These should have been
done. First. Because exclusion from canvass returns
decisive of an election is an
act which lends itself to misuse
by the board. Second. Sound practice seeks to accommodate every
plausible theory which discourage if not eliminate, minimize if not curb,
unlawful proclamation of, and assumption of public trust by, the wrong
man. Clean elections control the
appropriateness of the remedy.
Every effort then should be strained to ascertain the existence of
serviceable returns from Precincts 18, 19, 21 and 22. Not that this cannot be done here. There is evidence of record in the form of
affidavits of Aida Pacris, poll clerk of Precinct 21,
Bonifacio Acantilado, poll
clerk of Precinct 18, and Santiago Udaundo, LP
inspector for Precinct 22, to the effect that the tally boards in their
respective precincts show the exact number of votes received by
candidates Pacis and Negre. And this, together with the evidence of
tampering of the returns from Precincts 18, 19, 21 and 22,[6]
more than justifies resort to the copies of the election returns in the hand of
the provincial treasurer and, if necessary, those in the ballot boxes.
Maniago vs. Commission
on Elections, L-28413 and Guevara vs. Commission
on Elections, L-28414 (Resolution), December 20, 1967, are not to be
read as dispensing with the canvass of votes of all precincts. In those cases, there was no showing that the returns not
tabulated would affect the result of the election. Here, the returns from Precincts 18, 19, 21
and 22, which were not canvassed, are vital to the political fortunes of the
contending candidates. Ascertainment of the results of the voting in
those precincts should not so easily be done away with.
As is its practice, Comelec should summon
members of the board of inspectors, take evidence, and ascertain which are the genuine returns.
And then, it should direct the board of canvassers to use these returns
in the canvass of the votes. Our
pronouncement in Mintu vs. Enage, L-1836, December 31, 1947, cited in Ramos vs. Commission on Elections, 80
Phil. 722, 723-724; Abendante vs. Relato,
94 Phil. 8, 14-15; and in Javier vs. Commission on Elections,
L-22248, January 30, 1967, which still
holds true, is that the broad sweep of Comelec’s duty
to administer and enforce the election law gives it ample authority to direct
the board of canvassers to include in the canvass returns from the said precincts.
As it turned out to be, the December 28 proclamation of respondent
Atanacio Negre as
Mayor-elect is a realistic portrayal of hurry-before-injunction pattern. It is null and void.
4. Another problem we are to
grapple with is this: What is
the effect of Negre’s filing of Case 56-S in
the Cagayan court upon the November 18, 1967 proclamation, confirmed on November 23, 1967, declaring Pacis Mayor-elect?
Petitioner’s submission runs thus: Negre filed in the
Court of First Instance an “election protest” (November 29) after
he petitioned Comelec to suspend or annul the canvass
of votes and/or to annul the election returns (November 19); the Court of First
Instance acquired exclusive jurisdiction; and Negre is deemed to have abandoned his
remedy in Comelec.
Just exactly what is the nature of the petition filed by Negre before the CFI in Case 56-S? There, he alleged the following: (1) the board of canvassers which proclaimed Pacis, consisting of only six members, was illegally
constituted; (2) the said board illegally convened, canvassed and proclaimed Pacis Mayor-elect; (3) the election returns from Precincts
18, 19, 20, 21, 22 and 24 were falsified
and tampered with by Pacis, and to consummate
this Pacis caused the death of Vice Mayor Manuel
Franco and grave physical injuries to Capt. Macario Basco. And here is
what Negre’s “protest” is all about, quoting from the
petition he filed in the CFI (Case 56-S):
He “impugns and protests” – not necessarily the election
of Pacis – but “the election returns
and ballots cast in Precincts Nos. 18, 19, 20, 21, 22 and 24, as well as the proclamation” of Pacis. He thus prayed that (1) Pacis
be enjoined from assuming office; (2) the canvass be annulled and a new
board of canvassers be appointed; (3) the returns from those six precincts be
excluded; and (4) thereafter, Negre be declared to have
obtained the highest number of votes
for the office of Mayor in the uncontested precincts and proclaimed Mayor-elect. These
are but repetitions of what respondent seeks in Comelec in his petition of November
19, 1967 as supplemented on
December 8, 1967.
It thus results that Negre’s petitions
both in Comelec and in the Court of First Instance
are directed simply at the illegality of the canvass and proclamation of Pacis; the desire
to have a new board of canvassers; the
exclusion from the canvass of the alleged tampered returns from the precincts
disputed by him; and, thereafter his (Negre’s) proclamation
as Mayor elect of Sanchez Mira.
This is not a case where there was a valid canvass and
proclamation. It is quite apparent that Negre, within the limited time, between
the date of elections and the date of assumption of office of elected municipal
officials under the law, had to shuttle from the Comelec
to the court in an effort to assure himself of ample protection of his
rights. He was in a quandary. Because, nothing in the Revised Election Code
would give him a chance to contest the wrongful proclamation beyond the
two-week period set forth in Section 174.
He could not afford to wait. As
that two-week period was nearing its end, he thought of going to court in the
hope that all will not be lost.
Not that respondent Negre is alone in
this view. Petitioner Pacis himself concedes that the remedy
pursued by Negre in the Comelec
should proceed to its logical conclusion. In
fact, in the answer of Pacis to the petition in Case
56-S before the Court of First Instance, he emphatically defended himself by
advancing the claim that there is pending before Comelec
another action between the same parties and for the same cause; and
that the CFI petition stated no valid cause of action
and was premature. This
lends stout support to the conclusive that the petition before the court was
not an election protest at all.
Given the premise that Negre’s petition
in Case 56-S is not in the
nature of an election protest and that Comelec was
with jurisdiction[7]
to hear and determine the petition of Negre, the
result is that Comelec properly annulled the
proclamation of Pacis.
Just as we make the foregoing pronouncements, we are not unaware
of the ruling in Acain vs. Board of Canvassers of
Carmen, Agusan, L-16445,
May 23, 1960, where this
Court, through then Associate Justice, now Chief Justice, Roberto Concepcion, declared:
“Upon the filing of the aforementioned petition for a writ of
quo warranto and election protest on December 17 and
28, 1959, respectively, the Court of First Instance of Agusan
acquired exclusive authority to inquire into and pass upon the title of Degamo and the
validity of the proclamation made by the municipal board of canvassers on December 7, 1959. We
cannot, upon the authority of the petition herein, filed January 4, 1960,
determine said questions without encroaching upon the jurisdiction of said
court of first instance, which it is the duty of this body, as the highest
Court of the land, not only to respect, but, also, to uphold.”
The Acain doctrine is not to be
understood as governing the present case.
In Acain, there was an actual protest;
here, what was desired in court by Negre was merely a valid proclamation. In fact, to secure annulment of the canvass
and Pacis‘ proclamation, the first board of
canvassers was also made party
respondent in Case 56-S before the Court of First Instance. Normally, the board is not a party in
interest in an election protest. Unlike in Acain
where petitioners did not pursue their remedy (recount), here, Negre persisted in pursuing his petition for annulment of
the wrongful proclamation. In Acain, private respondents assumed office, became
at least de facto officers.
Here, both petitioner Pacis and respondent Negre aver that they assumed office as Mayor.
Quo warranto cannot be the remedy for
either. In Acain,
this Court found that the board of canvassers was lawfully constituted; here, we find that the board of canvassers which proclaimed Pacis
was unlawfully constituted, and that, consequently, the canvass and
proclamation made in violation of law are null and void.
To be accentuated now is that the proclamation of Pacis, as well as the subsequent proclamation of Negre, ate both null and void. The case stands as if no proclamation has ever been
made at all. And Pacis
and Negre return to status quo ante
– neither is proclaimed.
Upon the premises, the proclamation by the board of canvassers of
petitioner Pantaleon Pacis
and respondent Atanacio Negre
are hereby declared null and void; the petition for certiorari is hereby
granted, and the restraining orders heretofore issued by this Court are
declared permanent.
The Commission on
Elections is hereby directed:
(1) to constitute a new
municipal board of canvassers of Sanchez Mira, Cagayan,
in accordance with law, and the guidelines here established;
(2) to conduct an investigation to ascertain the
true returns from Precincts 18, 19, 21 and 22 of Sanchez Mira; and thereafter,
to instruct the board of canvassers to use the true returns for purposes of
canvass in said precincts; and
(3) to order the board of canvassers to canvass the election returns
from all the precincts of Sanchez Mira, and thereafter, to proclaim the winning
candidate for the office of Mayor of
said municipality.
No costs.
SO ORDERED.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Ruiz Castro,
Angeles, and Fernando, JJ., concur.
[1]
Case No. 56-S, Court of First Instance of Cagayan,
Branch IV, entitled “Atanacio Negre, Petitioner-Protestant, vs. Municipal Board
of Canvassers, Sanchez Mira, Cagayan,
Respondent; Pantaleon Pacis,
Protestee.”
[2]
Comelec
Case PR–578.
[3]
See: Affidavit of municipal
treasurer, Annex A, attached to private respondents’ answer herein. See also: Report to Comelec
by Special Attorney Remigio T. Tabangin,
Jr., Annex C of said answer.
[4]
Case No. 56-S, Court of First Instance of Cagayan. See footnote 1.
[5]
Section 167, Revised Election Code.
[6]
Annexes J; M-1, pp. 3-8; AA, BB, CC and DD of private respondents’ answer herein.
[7]
Mintu vs. Enage, supra; Ramos vs. Commission on Election supra; Abendante vs.
Relato, supra; Lacson vs.
Commission on Elections, L-16261, December 28, 1959; Santos vs.
Commission on Elections, L-16413, January 26, 1960; Chiongbian
vs. Commission on Elections, L-19202, December 11, 1961; Albano vs. Arranz,
L-19260, January 31, 1962; Olano vs. Ronquillo L-17912, May 31, 1963; Javier vs.
Commission on Elections, supra; Cauton
vs. Commission on Elections, supra; Espino
Zaldivar, supra.