DOMINADOR S. ASIS, PETITIONER, VS. HON. MELQUIADES G. ILAO, ETC., BASILIO ZANTUA, ETC., AND FERNANDO V. PAJARILLO, RESPONDENTS.

On November 25, 1959, as the result of the general elections held on November
10, 1959, the Provincial Board of Canvassers of Camarines Norte proclaimed
herein petitioner Dominador S. Asis as the Provincial Governor-elect of
Camarines Norte with a plurality of 59 votes over his closest rival, Fernando V. Pajarillo, one of the respondents herein. On December 4, 1959, Pajarillo filed
an election protest, contesting the election of petitioner. On December 21,
1959, petitioner Asis filed his answer and counter-protest. The respondent Judge
set the case for hearing on July 6, 1960. On said date, and thereafter, up to
July 27, 1960, the respondent Judge actually presided at the hearings. On July
29, 1960, the respondent court issued an order appointing the respondent Deputy
Clerk of Court, Basilio Zantua, as commissioner. That order reads as
follows:

“In order that the Court may proceed with the hearing of ordinary civil and
criminal cases, upon agreement of the parties, Deputy Clerk of Court Basilio
Zantua is hereby appointed as Commissioner to receive the evidence in the above
entitled case. The hearing shall proceed everyday beginning August 15, 1960, at
2:00 o’clock in the afternoon.” (Annex “C” of petition).

Resolving a petition for reconsideration filed by the petitioner, who
advanced the view, among others, that the Election Law and Rules of Court do not
authorize the court to appoint a commissioner to receive the evidence of the
parties, the respondent Court issued another order, dated August 18, 1960, the
pertinent portions of which read as follows:

“There are four election protests pending trial before this court. They are
case No. 1151, entitled Concepcion F. Abano vs. Rafael de la Cruz, Case No.
1159, entitled Nicolas V. Pardo vs. Edmundo Narra, Case No. 1148, entitled Jose
Fascual vs. Claro Ibasco, and the above-entitled case. In the case of Concepcion
F. Abano vs. Rafael de la Cruz, there are 180 boxes involved; in the case of
Nicolas V. Pardo vs. Edmundo Narra, there are 120 boxes involved; in the case of
Jose Pascual vs. Claro Ibasco, there are 14 boxes involved; and in the present
case, there are 199 boxes involved. The ballots involved may reach the
staggering number of 4,000. Judging from the attitude of the attorneys for both
parties in objecting almost to every ballot, it will take about a year for the
presiding Judge to receive the evidence in this case. For about a year,
therefore, it would be physically impossible for him to hear and decide ordinary
civil and criminal case, without mentioning the special actions.

“The commissioner herein appointed is not authorized to receive parol
evidence and to appreciate the ballots. He is only authorized to receive the
evidence consisting of ballots objected to by the parties. Trial, therefore,
before him will not in anyway affect adversely the rights of parties.

“In the election protest of Parayno vs. Primicias, Jr., the Electoral
Tribunal appointed Judge Morfe of Pangasinan as Commissioner to receive the
evidence. In the election law, there is no provision prohibiting the appointment
of a Commissioner. On the contrary, under the Rules of Court, a Commissioner can
be appointed by the court to hear evidence of the parties in ordinary civil
action. And Ride 182 provides that the Rules of Court shall apply to election
cases in ‘a suppletory character and whenever practicable and convenient.”
(Annex “D”)

Unable to agree with the court’s conclusion, petitioner has brought this
petition for certiorari and prohibition with preliminary injunction for the
setting aside of the order of July 29, 1960, claiming:

“That the Rules of Court, although it expressly states in Rule 132 that its
provisions can be applied to election cases by analogy or in a suppletory
character and whenever practical and convenient, provides that a Commissioner
can only be appointed or the case can be referred only to a Commissioner when
the parties give their consent to such reference, or in the absence of the
consent parties, the same could be done by the court in the following cases: (a)
when the trial of an issue of fact requires the examination of a long account on
either side, (b) when the taking of an account is necessary for the information
of the court before judgment, and (c) when a question of fact, other than upon
the pleadings, arises upon motion or otherwise in any stage of a case in
accordance with Sec. 2, Rule 34 of the Rules of Court which says:

“Reference ordered on motion: When the parties do not consent, the court may,
upon the application of either, or of its own motion, direct a reference to a
commissioner in the following cases: 

A—When the trial of an issue of fact requires the examination of a long
account on either side, in which case the commissioner may be directed to hear
and report upon the whole issue, or any specific question involved therein;

B—When the taking of an account is necessary for the information of the Court
before judgment, or for carrying a judgment or order into effect;

C—When a question of fact, other than upon the pleadings, arises upon motion
or otherwise in any stage of a case, or carrying a judgment or order into
effect.”

“That the issues or questions involved in the instant case are not among
those mentioned in the aforesaid section of the Rules of Court, and are not
proper for reference to a commissioner; and besides it will not be practical
and convenient if the provision of the Rules of Court is applied in a suppletory
manner in the instant case for the reason that it will open a way for the
commission of more anomalies to the prejudice of the herein petitioner;

“That the respondent Judge is bent on carrying out its order of July 29, I960
in having the case at bar be heard by a commissioner, for which cause petitioner
herein will suffer grave and irreparable prejudice, and injuries have been
suffered during the hearing of July 21, 1960 when the counsel of the respondent
Fernando Pajarillo who has no respect for the respondent Judge erased the name
of the petitioner on two ballots as alleged in paragraph 5 of this petition when
the respondent Judge went out of the courtroom for a while, and if counsel for
respondent Pajarillo did not even respect the respondent Judge, how much more
can he respect a Commissioner appointed by said respondent Judge;

“That the petitioner has no other plain, speedy and adequate remedy in the
ordinary course of law.”

On September 20, 1960, this Court issued a writ of preliminary injunction
restraining the respondent court from enforcing its order of July 29, 1960 as
well as a resolution requiring all the respondents to file an answer within 10
days from notice. Respondent Fernando V. Pajarillo filed his answer on October
7, 1960, paragraph 6 of which reads as follows:

“6. That while he denies the allegations in paragraphs 10, 11 and 12, he
wishes it known by the Court that it was not at his instance nor upon his
petition that the hearing of the election case be referred to a commissioner,
and in fact, he would much prefer it that the said hearing be made before the
Judge himself. Hence, he should not have been cited as respondent in the case at
bar. However, as to the question of appointing Deputy Clerk of Court Basilio
Zantua as commissioner to receive the evidence in the election case, it is
respectfully submitted that it may be done for the following reasons:

“a) that the authority of the commissioner is limited to the act of marking
the questioned ballots as exhibits and receiving them as submitted by the
parties. The commissioner is not authorized to receive parol evidence nor to
appreciate the ballots.

“b) that the rights of the parties will not in any way be affected as the
proceedings will be conducted in the usual manner in the presence of the
parties, their respective counsel and watchers.

“c) that the election law does not contain provision prohibiting the
appointment of a commissioner. On the contrary, under the Rules of Court whose
provisions may be applied to election cases by analogy or in a suppletory
character and whenever practicable and convenient. (Rule 132), trial before
commissioner is allowed (Rule 32).

“d) that the hearing of an electoral protest, more particularly the
examination of the questioned ballots by the parties, their marking as exhibits
and their submission to the court, is closely similar and analogous to a trial
in ordinary civil cases which requires the examination of a long account on
either side and wherein, under Sec. 2, Rule 32 of the Rules of Court, the court
may direct a reference to a commissioner.

“e) that the procedure, if allowed, will be practicable, convenient, and will
result to a speedy disposition of the electoral protest; and

“f) that in the electoral protest of Parayno vs. Primicias Jr., the Electoral
Tribunal appointed Judge Morfe of Pangasinan as commissioner to receive the
evidence, notwithstanding the fact that under the rules of said body, hearings
of cases should be made before it or its members.”

No answer was filed by the other respondents.

The issue here is the propriety of the appointment of respondent Basilio
Zantua as commissioner. It should be noted that while the order of July 29,
I960, stated that the appointment of Zantua was made upon agreement of the
parties, the petition alleges that the respondent court issued said order “on
its own motion”, and this allegation is not directly denied in the answer of
Pajarillo which instead avers “that it was not at his (Pajarillo’s) instance nor
upon his petition that the hearing of the election case be referred to a
commissioner, and in fact, he would much prefer it that the said hearing be made
before the Judge himself.”

In the case of Reforma vs. de Luna, (104 Phil., 278; 56 Off. Gaz., [23]
4015), this Court, after quoting Sections 175, 176 and 177 of the Revised
Election Code, concluded:

“As may be seen, the Revised Election Code does not provide for any
particular procedure for the disposition of an election case once the issues are
joined. On the other hand, Rule 132, of our Rules of Court, provides that the
rules of court shall not apply to election cases ‘except by analogy or in a
suppletory character and whenever practicable and convenient.’ It would
therefore appear that by legislative fiat the trial of an election case shall be
conducted in a summary manner without the cumbersome procedure prescribed for
ordinary litigations in order that its result may be determined in the shortest
time possible. The reason is obvious: an election case, unlike an ordinary,
action, involves public interests, time element being of the essence in its
disposition so that the uncertainty as to who is the real choice of the people
may at once be dispelled. Moreover, it is neither fair nor just that we keep in
office for an uncertain period one whose right to it is under suspicion. It is
imperative that his claim be immediately cleared not only for the benefit of the
winner but for the sake of public interest, which can only be achieved by
brushing aside technicalities of procedure which protract and delay the trial of
an ordinary action. As this Court has aptly said: ‘The purpose of the
legislature in declaring that contest should not be conducted upon pleadings or
by action was to free the courts as far as possible from the technicalities
incident to ordinary proceeding by action and to enable the courts to administer
justice speedily and without complications.’ (Lucero vs. De Guzman, 45 Phil.
852). It also said that ‘An election contest is a special summary proceeding,
the object of which is to expedite the settlement of the controversy of the
candidates as to who received the majority of the legal ballots.”

“Of course, in enunciating that the trial of an election case should be
devoid of technicalities of procedure or conducted in a summary manner we do not
mean that there should not be any reception of evidence as required in an
ordinary trial. Cases there are when this may be needed as when it may be
necessary to present evidence aliunde, or such evidence other than those
documents whichthe law requires to be produced in court for its examination
(Section 175, Revised Election Code). It is in this sense that the court may
apply the Rules of Court by analogy or in a suppletory character as ordained in
Rule 132. In every other respect, the trial is summary and the court may
consider not only what has been presented formally as evidence but also whatever
may have been submitted to it by virtue of the express provision of the
law.”

Section 175 of the Code provides:

“Sec. 175. Judicial counting of votes in contested elections.—Upon
petition of any interested party, or motu proprio, if the interests of
justice so require, the court shall immediately order that the copies of the
registry lists, the ballot boxes, the election statements, the voters’
affidavits, and the other documents, used in election be produced beforeit and
that the ballots be examined and the votes recounted, and for such purpose it
may appoint such officers as it may deem necessary and shall fix the
compensation of each at not less than five pesos but not more than fifteen pesos
for every election precinct which they may completely revise and report
upon.”

Evidence in an election case are generally of two kinds:

(1) the documents which Section 175 requires to be produced in court for its
examination, and (2) the evidence aliunde, if any, which the parties may
deem necessary to present. In the production of the first, consisting of
election paraphernalia, their examinatfon may be conducted in a summary manner.
In the presentation of the second, it may be done, as in an ordinary trial, in
view of the fact that no particular procedure is outlined in the Code and Rule
132 of the Rules of Court provides that the Judicial Rules shall not apply to
election cases except by analogy or in a suppletory character and whenever
practicable and convenient.

As explained by the respondent court in its order of August 18, 1960:

“The Commissioner herein appointed is not authorized to receive parol
evidence and to appreciate the ballots. He is only authorized to receive the
evidence consisting of ballots objected to by the parties. * * *.”

It appears that the commissioner’s job is confined to the marking, for
purposes of identification, of the ballots objected to by the litigants, in
preparation for their examination by the court and for the trial to receive
parol evidence in support of the parties’ objections. This being the case, there
is no occasion for the application of Rule 34 of the Rules of Court,
particularly Section 2 thereof. The court’s authority to appoint a commissioner
is derived from the Code itself. It is significant to note that under Section
175 the court is not only authorized, upon petition of any interested party or
motu proprio, if the interests of justice so require, to order the
production of election paraphernalia for the examination of the ballots and the
recounting of votes, but also, and for the purpose of such examination and
recounting, to appoint such officers as it may deem necessary. The court
may make the appointment upon petition of the parties or motu proprio, if
the interests of justice so require. The court’s explanations contained in its
order of August 18, 1960, show positively that the appointment of a commissioner
was done to subserve the interests of justice.

Wherefore, the instant petition for certiorari and prohibition is hereby
dismissed. The preliminary injunction heretofore issued is hereby set aside.
With costs against the petitioner.

Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera,
Paredes, and Dizon, JJ., concur.