CIPRIANO PEÑAFLORIDA, PETITIONER, VS. COMMISSION ON ELECTIONS, NEW & SPECIAL PROVINCIAL BOARD OF CANVASSERS OF ILOILO AND RAMON DUREMDES, RESPONDENTS.

A quick look at the three preceding cases elevated to this
Court on Certiorari revolving around the elective position of Vice-Governor of Iloilo is in order.

1. In “Duremdes
v. Provincial Board of Canvassers, COMELEC,
and Penaflorida (G.R Nos.
86362-63, 27 October 1989, 178 SCRA 746), we upheld the COMELEC Decision
ordering the Provincial Board of Canvassers of Iloilo (PBC) to immediately
reconvene, include in the canvass the questioned election returns and prepare a
new Statement of Votes, after we had found that DUREMDES’ proclamation was
based on an incomplete canvass.

2. In “Penaflorida v. COMELEC and DUREMDES, (G.R. No.
93376, 19 July, 1990), the PBC did reconvene but because the COMELEC ordered
the physical examination of the questioned election returns (PBC copy and other
election returns copies). PENAFLORIDA
sought to enjoin the conduct of said physical examination. The Court denied that plea and held that it was best that the
physical examination of different copies of the questioned election returns be
made to verify the number of votes in the election returns from which the
Statement of Votes could be tabulated. The Court also directed the COMELEC to proceed with dispatch with the
physical examination of the questioned election returns so that the true will
of the electorate of Iloilo could be determined.

3. In Penaflorida v. COMELEC (G.R. No. 96760, 19 June 1991,
198 SCRA 454), Penaflorida charged the COMELEC with grave abuse of discretion
for having conducted the physical examination without notice to him and in his
absence, and prayed for the re-examination of all 110 contested election
returns. We rejected the plea for
re-examination but in order to afford PENAFLOFIIDA an opportunity to see for
himself the discarded returns, we
directed the COMELEC to allow him
to examine, within a period of
three (3) days, the forty-nine
(49) questioned election returns which the COMELEC en banc “found to be fake, or substituted or
systematically tampered with and no longer reflective of the true results of the election.”

Also assailed by
PENAFLORIDA in this case was the COMELEC Order of 11 February 1991 declaring
that it had completed the
physical examination and comparison of the questioned election returns and
found that of the 110 questioned election returns in nine (9) municipalities of
Iloilo, forty-nine (49) returns from four (4) municipalities had been
“systematically tampered” with or substituted. Thus, with respect to said forty-nine (49) questioned returns, the
COMELEC ordered that the COMELEC copy or ballot box copy of said election
returns be used for canvassing, instead of the usual PBC copy.

The same Order required
the PBC to convene within five (5) days from notification and to complete the
canvass, utilizing for the purpose the PBC copies for those precincts the
returns of which were not questioned, and for those which were, such election
returns, per precinct, as specified in the Order.

After PENAFLORIDA had
examined the aforesaid returns, the COMELEC issued a series of Orders, which
eventually led to the filing of the fourth case, i.e.:

4. G.R. No. 101753 (the present case).

The first Order, dated 22
August 1991, directed the taking of the thumbprints of the Chairman and/or any
Member of the Board of Election Inspectors of the questioned precincts for
comparison with the thumbprints reflected in the election returns, “with prior
notice to parties of the date and place of said fingerprint taking.” The Order
was prompted by the “desire (of the COMELEC) to further determine the
genuineness, authenticity and due execution of the election returns with
conflicting entries” and in deference to the request of the new members who had
not taken part in the previous deliberation
namely, Chairman Monsod and
Commissioner Maambong.

PENAFLORIDA moved for the
immediate implementation of the 22 August 1991 Order in his Manifestation and
Motion, dated 9 September 1991. In its Order, dated 12 September 1991, however, the COMELEC,
after stating that the thumbprint taking had already been accomplished on September
1991, directed the thumbprint examiners “to immediately conduct a comparative examination of the thumbprints
taken with those thumbprints appearing
in the election returns.”

PENAFLORIDA thereafter
filed a Manifestation, dated 13 September 1991, praying for a retaking of the
thumbprints as it had received no prior notice with respect thereto. The COMELEC brushed
aside that plea in its assailed Order,
dated 18 September 1991,
stating, among others, that said examination was but part of its internal
procedure; and since the results of the “dactyloscopic examination” confirmed
its original findings reflected in its Order of 11 February 1991, it directed
the PBC, with prior notice to the parties, to reconvene within five (5) days,
proceed with the canvass of the election returns and proclaim the winning
candidate. The PBC set 2 October 1991
for the canvass and proclamation.

On 30 September 1991,
PENAFLORIDA instituted the present Certiorari Petition praying that the COMELEC
Order of 18 September 1991 be set aside for having been issued with grave
abuse of discretion as the COMELEC had failed to notify him of the fingerprint
taking in contravention of its earlier Order that the same be conducted with
prior notice to the parties. He
contends that the thumbprint taking was never meant by the COMELEC to be an
“internal procedure” in its 22
August 1991 Order but that it was necessary in order to determine the genuineness and authenticity of the different
copies of the questioned election returns. He then prays that, in equity, the COMELEC be ordered to conduct a
recount of ballots in all the forty-nine (40) precincts and that a proclamation
of the winning candidate be made on the basis of the results of the recounting.

We required Comments
from all respondents and, as PENAFLORIDA had prayed for, we issued a Temporary Restraining Order on 1 October
1991 enjoining the PBC of Iloilo from reconvening on 2 October 1991 and the COMELEC from enforcing its
questioned Order of 18 September 1991.

It appears that, as Respondent DUREMDES pointed out in
his Comment, PENAFLORIDA had three (3) pending Motions before the COMELEC at
the time he filed this Petition, (1) an “Urgent Motion for Recount of Ballots” filed on 18 September 1991;
(2) a “Most Urgent Omnibus Motion” filed on 23 September 1991, the main thrust of which was the nullification of
the thumbprint-taking conducted in Iloilo City on 5 September 1991 and the
suspension of any action on the
case until rulings therein had been rendered; and (3) an “Urgent Ex-Parte Motion to Resolve Pending
Incidents” filed on 25 September 1991.

If for this alone, the Petition is dismissible on
the ground of prematurity for failure to exhaust
administrative remedies. However, with
the end in view of putting a final termination to this protracted controversy, we will nonetheless resolve the
Petition on the merits.

PENAFLORIDA’s submissions
call for rejection.

The COMELEC Order, dated
22 August 1991, did state that the thumbprint
taking was to be conducted with prior notice to the parties, thus:

“x x x             x x x                 x x x

“ACCORDINGLY, the Director, Election Records and Statistics
Department is hereby directed to assign and send immediately fingerprint
experts to Iloilo in coordination with the Provincial Election Supervisor to
the fingerprints of the Chairman and/or any Member of the Board of Election
inspectors the above named precincts, with prior notice to parties of the date and place of said fingerprint
taking.” (Underscoring ours).

To be noted, however, is
the fact that neither the Omnibus Election Code (B.P. Blg. 881) nor the
Electoral Reforms Law (Rep. Act No. 6646), the governing legislation during the
18 January 1988 local elections, provide, much less, outline the procedure to followed for such an examination.

There is basis,
therefore, for the COMELEC ruling in its Order of 18 September 1991 that the fingerprint taking was merely “part of its internal procedure.” Worthy of recall is that all the COMELEC had
to do after this Court had promulgated the Decision in G.R. No. 96760, supra,
was to have afforded PENAFLORIDA the opportunity to see for himself the election
returns which were found to have been fake, substituted or tampered with, nothing more. There was really no compulsion for the COMELEC to order the
thumbprint taking but it did so “in its desire to further determine the
genuineness, authenticity and due execution of the election returns with questionable entries.”

Indeed, it was not PENAFLORIDA who asked for the thumbprint taking. That
initiative came from the COMELEC itself, which “wanted to make sure that
its previous ruling was indeed correct”
(COMELEC Order, dated 30 September 1991, p. 10). That objective can be
further gleaned from the fact
that it was the newly appointed COMELEC Chairman and another new Member,
Commissioner Maambong, both of whom had not participated in the earlier
deliberations, who prevailed upon the other Members to allow the thumbprint
taking (ibid., p. 6) so that they could satisfy themselves of the authenticity
of the copies of the election returns earlier chosen.

In effect, the thumprint
taking was conducted to assist the Commissioners in resolving the issue on the
genuineness, authenticity and due execution of the forty-nine (49) election
returns found to be fake, substituted or tampered with. Said fingerprint examination and the comparison made between
the spec specimens taken by the fingerprint experts and those contained
in the returns are actually part of the
decision-making process. The parties, therefore, are not, as a matter of right, entitled to be present during the
examination nor to confront the experts on the result of their work.

It should also be pointed
out that no substantial rights were impaired by the absence of the parties in
the thumprint taking. Both PENAFLORIDA
and DUREMDES were not notified thereof. There was no discrimination by the COMELEC in DUREMDES’ favor to speak
of, as PENAFLORIDA charges. Although
PENAFLORIDA claims that Respondent DUREMDES was present during the thumbprint
taking, the COMELEC has not confirmed the same.

Neither can it be
successfully said that there were irregularities attendant to the thumbprint
taking. No proof was
adduced by PENAFLORIDA evidencing such alleged irregularities. On the contrary, Commissioner Maambong
supervised the examination from beginning to end. The whole process itself was transparent. The procedure undertaken during the
thumbprint taking, outlined in the COMELEC
Order, dated 30 September 1991,
speaks for itself. Thus:

“The  submitted reports of the
process indicate that a Commissioner of the Comelec supervised the thumbprint
taking. He was assisted by Regional
Director Rodolfo B. Sarroza,
Asst. Regional Director Jose G. Granada, and Provincial Election Supervisor
Hector M. Masna, with a compliment of
nine (9) personnel of the Iloilo Comelec Office. The thumbprints – two impressions of the right thumb for each
subject – were impressed in prepared forms, and the taking was witnessed by the
Supervising Commissioner and the two
fingerprint examiners. The thumbprint impressions were then placed
in sealed envelopes as they were brought to Manila. Likewise, the comparative examination in the Comelec Office in
Manila was done by the fingerprint examiners who went to Iloilo City, in coordination
with the different custodians of the election returns. x x x” (ibid, p. 11).

If any error can be
attributed at all to the COMELEC, it would be its failure to notify the parties
of the fingerprint examination despite its order to do so. At most, this is a procedural flaw, not a
substantial defect, that can not be equated with grave abuse of discretion by
reason of which Certiorari would lie. Errors of procedure or judgment are not correctible by Certiorari.

As correctly held by the COMELEC, even if a thumbprint re-taking is conducted, “a comparison of these
thumbprints with those appearing in the different copies of the election
returns will certainly yield the same results” since fingerprints cannot be
forged. Besides, there is no change to
the COMELEC Order of 11 February 1991 that the PBC
copies for those precincts whose
returns were not questioned were
to be utilized, and for those questioned, the specified election returns, per
precinct.

It behooves the COMELEC,
however, particularly its personnel, to
be more meticulous and painstaking in the execution and implementation of
Orders. The Court notes that failure of notice of the conduct of physical examination was Petitioner PENAFLORIDA’s same plaint in G.R. No. 96760, and which
has contributed in no small measure
to further delay in the final
resolution of this controversy.

We now   turn
to PENAFLORIDA’s urgings that at this late point in time,
reliance on election returns is no longer justifiable and that a recount of the
ballots in all the questioned precincts is the best equitable remedy.

We disagree. In the first place, there is no basis for a recount since the election returns are
available. Secondly, in G.R. No.86362-63, entitled “Duremdes v. Provincial Board of
Canvassers,” (27 October 1989,
178 SCRA 746), the questioned election returns, 110 in all, had already been pinpointed and ordered included
in the canvass. In G. R. No. 93376,
entitled “Penaflorida v. COMELEC, (19 July 1990), this Court ordered the
physical examination of the said questioned election returns. And in G. R. No. 96760 similarly entitled
“Penafiorida v. COMELEC,” (19 June 1991, 198 SCRA 454), with the physical
examination and comparison of questioned election returns accomplished, we
upheld the COMELEC finding that of the 110 questioned election returns,
forty-nine (49) returns had been systematically
tampered with or substituted so
that with respect to the latter the COMELEC copy or ballot box copy of said
election return is to be used for canvassing instead of
the usual PBC copy. With the affirmance
by this Court of the aforesaid COMELEC rulings, the recount prayed for by
Petitioner PENAFLORIDA is out of the question.

Parenthetically, Petitioner PENAFLORIDA’s lawyers continually
harp on the alleged erroneous ruling of this Court in G.R. No. 96760 (supra)
that “particular copies of the
(forty nine [49] questioned election returns) were found to be fake,
substituted or systematically tampered with and no longer reflective of the
results of the elections,” averring that there was no such finding by the COMELEC. While it
may be that the COMELEC Order itself of 11 February 1991 did not specifically
pinpoint a particular election return as fake, substituted or tampered with
since confined itself to the particular copies of the election returns to be
used in the canvass, yet, the basis for selecting the copies of the election
returns other than the PBC copy, was well explained before this Court by
Commissioner Rama during the 21 February 1991 hearing in G.R. No. 96760, which
Petitioner’s counsel attended. Commissioner Rama precisely explained that
the findings of the COMELEC when it examined the questioned election
returns were that some of them were “fake” or “falsified” (TSN., pp. 83-88). Moreover, the notes
or summary of the COMELEC findings relating to the questioned election returns
were included by the Solicitor General in his Memorandum, dated 28 February
1991, submitted in the aforesaid case. Therein, reference was made to the finding that some of the returns were “systematically tampered”
(p. 10) or “substituted” (p. 9). It is Petitioner, therefore who is in error
when he states that there was no such finding made by the COMELEC. Besides, even assuming that those terms were
not explicitly employed, the COMELEC observations during its physical
examination of the election returns could not but lead to the use of the same
terminologies.

Finally, the unassailable
fact remains that Petitioner’s counsel deliberately failed to inform this
Court, at the time of the institution of this Petition, of their pending
Motions before the COMELEC, treating practically of the same questions raised
herein, to repeat: (1) an “Urgent
Motion for Recount of Ballots” filed on 18 September 1991; (2) a “Most Urgent
Omnibus Motion” filed on 23 September 1991; and (3) an “Urgent Ex-Parte Motion
to Resolve. Pending Incidents” filed on
25 September 1991. Recourse to this
Court was, therefore, clearly premature. Counsel’s justification that had they not filed this Petition, it would
have been mooted and that Respondent
Duremdes would have been
erroneously proclaimed does not free them from culpability.

Lawyers owe candor, fairness
and good faith to the Court
(Canon 10, Code of Professional
Responsibility). A finding, therefore, that Petitioner’s lawyers have been remiss in this obligation
is inevitable.

Considering that the term
of office of the local officials
elected during the 18 January
1988 elections is almost expiring,
there is need for this Decision to be
immediately executory.

WHEREFORE, the Petition for Certiorari is DENIED. The
Temporary Restraining Order heretofore issued by this Court is LIFTED. The COMELEC may now proceed to implement its Orders of 11
February 1991 and 18 September 1991 directing the Provincial
Board of Canvassers of Iloilo, with prior notice to the parties, to reconvene, within five (5) days from notice, proceed with the canvass and proclaim the winning
candidate.

Petitioner’s lawyers, Atty. Salvador S. Tayengco and Atty. Sixto S. Brillantes, Jr., are
hereby directed to SHOW CAUSE within ten (10) days from notice, why they should
not be administratively dealt
with for their deliberate failure
to exhaust administrative
remedies before their recourse to
this Court.

This Decision is
immediately executory.

SO ORDERED.

Narvasa, C.J., Cruz, Paras, Feliciano, Padilla, Bidin,
Medialdea, Regalado, Romero, and Nocon,
JJ., concur.

Gutierrez, Jr., J., in the
result.

Griño-Aquino and Davide,
Jr., JJ., no part.