G.R. No. 22325. December 11, 1967
CORAZON M. ESPINO, PETITIONER, VS. HON. CALIXTO ZALDIVAR, COMMISSION ON ELECTIONS, AND PATRICIO DUMLAO, RESPONDENTS.
SANCHEZ, J.:
Original petition for certiorari and prohibition to annul the proclamation
of Patricio Dumlao – made on January 2, 1964 by the substitute board of
canvassers of Nueva Vizcaya
– as Governor-elect of said province. We
declined to issue the writ of preliminary injunction prayed for to stop
respondent Patricio Dumlao “from asserting or
exercising any power, prerogative or duties pertaining to the Office of
Provincial Governor”; the Commission on Elections from taking any action
to implement its resolutions and orders leading to the proclamation on January
2, 1964 just stated; and then Assistant Executive Secretary Calixto
O. Zaldivar (now an Associate Justice of this Court)
from implementing in any manner the Presidential decision recognizing
respondent Dumlao as Provincial Governor.
The facts, so the record discloses, are as follows:
Registered candidates for Governor of Nueva
Vizcaya in the November 12, 1963 elections were petitioner Corazon M. Espino and respondent Patricio Dumlao.
On November 19, 1963, Dumlao lodged
with the Commission on Elections (Comelec) a petition
praying that Comelec direct the provincial board of
canvassers of Nueva Vizcaya
to use Comelec’s copies of the election returns from
six precincts in the Municipality of Aglipay, Nueva Vizcaya, because till then,
the Provincial Treasurer had not received the copies corresponding to him.
On November 20, 1963,
Comelec issued an order enjoining the board from
canvassing the election returns without Comelec’s
prior order. On December 2, 1963, the board nonetheless proceeded
to canvass the returns from the entire province. The copies of the election returns from the
six precincts of Aglipay for the Provincial
Treasurer, were received in the afternoon of that day – December 2, 1963.
Meanwhile, on December 3, 1963, Comelec
directed by wire its representative in Nueva Vizcaya, Atty. Saturnino L.
Mayor, to authorize the use of the long delayed returns copies for the
Provincial Treasurer covering the six precincts aforesaid, provided that the
delay in their transmission was satisfactorily explained, and provided further
that said returns were not tampered; “otherwise board of canvassers shall
use election returns copies for mun treas aglipay.” Atty. Mayor
advised the board of canvassers of this directive. He asked that he be given a chance to
investigate and satisfy himself of the existence of the two conditions. He was overruled by the board. Instead, the board proceeded to tally the
votes in Aglipay using the election returns copies
for the Provincial Board.
On December 4, 1963,
Atty. Mayor made an examination of the copies for the Provincial Treasurer, of
the returns from the six precincts of Aglipay. His findings:
(1) the envelopes containing said returns were slit at the bottom; (2)
the paper seals of the returns inside were already broken; and (3) the words
and figures in the returns bore visible traces of erasures.
The comparative figures explanatory of the discrepancy, as stated
in the petition herein, are as follows:
A G L I P A Y
PROV. TREAS, COPIES MUN,
TREAS, COPIES
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Atty. Mayor ordered the suspension of the canvassing. But the order was ignored. Atty. Mayor, on the same day, reported the
matte in two telegrams to Comelec which dispatched a
wire to the Provincial Fiscal, chairman of the board of canvassers, thus:
“Our Atty Mayor reported that provl board canvassers refused to obey Commission
instructions that on his findings election returns from Aglipay
copy provl treas already
tampered provl board canvassers shall use election
returns from Aglipay copy of mun
trees pd you are instructed to advise provl board
canvassers Commission order to use in provl canvass
election returns from Aglipay copy of mun tress and their disobedience will result suspension
members provl board canvassers and annulment canvass
made for said municipality”.
This was confirmed by Comelec’s
resolution of December 5. On the same
day, December 5, 1963, the
board ordered the tabulation of the results; and adopted a resolution
suggesting a judicial recount because of the difference in the number of votes
cast in the six precincts of Aglipay appearing in the
Municipal Treasurer’s returns copies and those of the Provincial Treasurer.
On December 7, 1963,
the board of canvassers filed with Comelec a motion
praying for the reconsideration of the telegraphic order to use the Municipal
Treasurer’s copies of the election returns for Aglipay. Respondent Patricio Dumlao
opposed, in turn petitioned for the suspension and substitution of the members
of the board of canvassers of Nueva Vizcaya. Hearing on
the board’s motion for reconsideration, and Dumlao
opposition thereto and counter-petition, started on December 18, 1963, was concluded on December 23, 1963. At the hearing, Atty. Eficio
Acosta, member of and in representation of the board of canvassers, was
present.
On December 26, 1963,
Comelec issued its resolution directing the board to
canvass the votes by using the Municipal Treasurer’s copies, instead of those
of the Provincial Treasurer, in the six precincts of Aglipay,
and thereafter to proclaim the candidates elected. On the same day, Comelec
relayed this resolution to the Provincial Fiscal, chairman, and Governor Jose
G. Espino and the Provincial Treasurer, members of
the board of canvassers.
The petition herein (par. XIV thereof) states that on the very
same day, December 26, the board of canvassers signed the certificate of
canvass and proclamation, and proclaimed Corazon M. Espino,
who obtained 18,836 votes, as Governor-elect, over Patricio Dumlao,
who garnered 18,476 votes.
The return of respondent Dumlao (p. 10
thereof) contrariwise avers that no meeting of the board took place on December
26; that the members thereof who signed the alleged certificate of canvass and
proclamation did so in different places and on different dates posterior to December
27 when the board received Comelec’s resolution of
December 26.
Significant to note are the following: (1) the Provincial Treasurer’s copies of the
returns were used in tallying the votes; (2) one of the signers of the
certificate was Jose G. Espino, then Provincial
Governor and husband of the first proclaimed Governor-elect Corazon M. Espino; and (3) Provincial Fiscal Juan P. Aquino, chairman, did not sign the certificate of canvass
and proclamation.
On December 28, 1963, the Provincial Fiscal, chairman of the
board, wired Comelec:
“Received your two telegrams stop have set meeting board of
canvassers to canvass December thirty nine o’clock morning stop
have informed by telegram members board canvassers in their city addresses
because they are not here.”[1] The date was later moved to January 1, 1964 at 9:00 a.m. at the request of the members of the
board of canvassers, per letter received by Comelec
from their Chairman on December 29.
On December 29, 1963,
Corazon M. Espino filed a petition for certiorari
before this Court, L-22278, questioning the power of the Comelec
to issue the December 26, 1963
resolution. This was withdrawn on January 4, 1964 allegedly upon
being officially notified of her previous proclamation. She took her oath of office after midnight of December 31, 1963.
On the scheduled date and time for canvass (January 1, 1964, 9:00
a.m.), not one of the members of the board appeared. The Comelec
representative, Atty. Jose Toledo, was then
in possession of the copies of the election returns from the six precincts of Aglipay, for the Municipal Treasurer of Aglipay. Atty.
Toledo waited till 11:00 a.m. To avoid delay, Atty. Toledo conducted a
personal investigation to ascertain the whereabouts of the absconding members
of the board. He was accompanied by
three PC members. The group went to the
residences of the board members, inquired from residents of the places, to no
avail. As none of them could be located,
on telegraphic petition of Atty. Toledo, Comelec on
the same day authorized him by telegram to appoint their substitutes.
Thus, the original members:
(1)
Gavino Pe Benito, Provincial Treasurer, Member
(2)
Lorenzo Purificacion,
Provincial Auditor, Member
(3)
Artemio Tiangco, Highway District Engineer, substitute for
Vice-Governor, Member
(4)
Eficio
Acosta, Board Member
(5)
Ramon Purugganan,
Register of Deeds, in lieu of a Provincial Board Member, Member
(6)
Jose G. Espino,
Governor, Member, and
(7)
Juan P. Aquino,
Provincial Fiscal, CHAIRMAN
were replaced by the
following substitutes:
(1)
Melecio
A. Genato, First Assistant Fiscal, who acted in lieu
of the Provincial Fiscal, CHAIRMAN
(2)
Miguel M. Guevara, Clerk of Court,
CFI, NV,
Member
(3)
Rodolfo Q. Agbayani,
Deputy Clerk of Court, CFI, Member
(4)
Tomas P. Maddela
II, Municipal Judge, Bayombong, Nueva
Vizcaya, Member
(5)
Honorato
A. Mendoza, Officer-in-Charge, DHO, acting in lieu of the District Health
Officer who has retired from government service, Member
(6)
Ramon V. Purugganan,
Register of Deeds, Member, and
(7)
Eulogio
de Guzman, Div. Supt. of Schools, Member.
On January 2, 1964,
the newly constituted board convened and tallied the votes. For the returns from the Municipality
of Aglipay,
the board used the figures appearing on the Municipal Treasurer’s copies. Result:
Respondent Patricio Dumlao, who obtained
19,031 votes as against petitioner’s 18,278 votes, was proclaimed
Governor-elect. Except for Ramon V. Purugganan, Register of Deeds, and Eulogio
de Guzman, Division Superintendent of Schools, who were absent, the certificate
of canvass and proclamation was signed by all the substitute members of the
board. These proceedings were confirmed
by the Comelec in its January 4, 1964 resolution.
The Office of the President, thru then Assistant Executive
Secretary Calixto O. Zaldivar,
announced that the Executive Department would recognize Dumlao
as the duly elected Governor, unless competent courts declare otherwise.
Hence, this petition.
Three main questions call for resolution: They are:
(1) Is Comelec with authority to direct the
board of canvassers to disregard the Provincial Treasurer’s copies of the
returns from six precincts of Aglipay, and in lieu
thereof, to use the Municipal Treasurer’s copies? (2) May Comelec
order a canvass after the original board of canvassers allegedly has proclaimed
petitioner? (3) Was the board of
canvassers, which proclaimed Patricio Dumlao
Governor-elect, duly constituted?
1. Petitioner points to Comelec’s want
of authority to declare as falsified the Provincial Treasurer’s copies of the
election returns from the six precincts of Aglipay
and to direct the use of the Municipal Treasurer’s copies thereof in canvassing
the votes.
First to the
premise. The controlling facts found by Comelec appears in the resolution of December
26, 1963, viz:[2]
“The controlling facts of this case which find support on the
records hereon as well as on the evidence introduced during the hearing of this
case before the Commission are the following:
that the boards of election inspectors for the six precincts of Aglipay, Nueva Vizcaya, placed paper seals on all copies of the
election returns, including copies for the provincial treasurer, before putting
them in their corresponding envelopes, with the envelopes themselves likewise sealed
with paper seals for the purpose, and that the copies of the election returns
and their envelopes for the provincial treasurer were in proper condition when
delivered to the municipal treasurer of Aglipay for
posting as registered mail; that on the day following the election, or on November
13, 1963, the respective chairmen and/or poll clerks of said six precincts of Aglipay delivered to the municipal treasurer, as
ex-officio, postmaster, of said municipality the provincial treasurer’s copies
of the election returns of Aglipay for posting as
registered mail; that these six copies of the election returns for the
provincial treasurer, posted on November 13, 1963 did not
arrive at the Office of the Provincial Treasurer of Nueva
Vizcaya until December 2, 1963, or in other words, they were unduly delayed in the
mail, as according to an employee of the post office in Manila, who testified
during the hearing hereon, mail matters from Aglipay,
under regular circumstances, arrive at Bayombong,
Capital of Nueva Vizcaya, a
week after its posting in Aglipay; that the envelopes
containing the election returns herein involved, when received by the
provincial treasurer do not bear the postmark of the post
office in the municipality of Jones, Isabela, where
they are supposed to be routed on their way thru the mail from Aglipay to Bayombong, the
capital of Nueva Vizcaya;
that when these six envelopes containing said copies of the election returns
for the municipality of Aglipay were delivered to the
provincial treasurer, they were all securedly tied
together by abaca twine; that when the envelopes were
opened in the presence of the provincial
board of canvassers, they were already with slits
at their other ends; that when said copies of election returns themselves were
presented for canvassing, the votes for candidates Dumlao
and Mrs. Espino bear signs of erasures and tampering,
with the votes for candidates Dumlao and Mrs. Espino changed in a way that would
alter the result of the election;
that a comparison made during the hearing in the Commission of the copies of
the election returns for, the provincial treasurer, the municipal treasurer,
the Commission on Elections, and the Nacionalista
Party show that the entries of votes for Candidates
Dumlao and Mrs. Espino in the copies of the election returns for,
the Commission on Elections, the municipal treasurer, and the Nacionalista Party do not show any erasures and that said
votes are all the same, whereas in the provincial treasurer’s copies which bear
erasures and superimpositions, the votes for said candidates are different
from those appearing in the aforesaid three copies of the election returns;
and that the chairmen of the six precincts of Aglipay,
who testified during the hearing in the Commission, all categorically
declared that the erasures and alterations on the entries
of votes for Candidates Dumlao and Mrs. Espino appearing
in the provincial treasurer’s copies of the election returns were not
made by them, and that the true and correct votes of
Candidates Dumlao and Mrs. Espino
are those which appear in the copies of the election returns for, the
Commission on Elections, the municipal treasurer, and the Nacionalista
Party, all of which do not bear any erasures.”
It may be well to emphasize the fact that the tampering of the
election returns in the six precincts is decisive of the result. If the genuine copies of the Municipal
Treasurer were used, as it was
used by the second board of canvassers, respondent Dumlao
wins. If, on the other hand, the
tampered returns for the Provincial Treasurer aforesaid were considered, then
petitioner Espino would sit.
Petitioner’s case on this point is mainly made to rest on Section
163 of the Revised Election Code, which reads:
“SEC. 163. When statements
of a precinct are contradictory. – In case
it appears to the provincial board of canvassers that another copy
or other authentic copies of the statement from an election
precinct submitted to the board give to a candidate a different number of votes
and the difference affects the result of the election, the Court of First
Instance of the province, upon motion of the board or of any candidate
affected, may proceed to recount the votes cast in the precinct for the sole
purpose of determining which is the true statement or which is the true result
of the count of the votes cast in said precinct for the office in
question. Notice of such proceeding
shall be given to all candidates affected.”[3]
Implicit in the statute
just quoted is that differences in the number of votes given a candidate should
result from contradiction in the different returns, as
prepared and signed by the inspectors.
We do not discern in the law a purpose to throw the burden on courts
where it is patent – as is the case here – that tampering of the returns
occurred after they have left the hands of the election inspectors, just
to pave the way for the proclamation of a candidate in whose favor
falsification was resorted to. To tie up
the hands of the board of canvassers in the situation here presented is to wink
at a brazen form of wrongdoing to subvert the people’s will, and in mockery
crown the loser with victory. Correctly
then, canvassers are given quasi-judicial powers to determine whether the
return is genuine and to disregard one which is obviously a forgery.[4]
Along parallel lines, this Court, in Nacionalista
Party vs. Commission on Elections, 85 Phil. 149, 157, 158, declared that the
canvassing board could accept as correct those returns transmitted to it
“which are in due form”; that they must “be satisfied of the genuineness
of the returns – namely, that the papers presented to them are not forged and
spurious”; and that “where the returns are obviously manufactured, x x x the board will not be
compelled to canvass them.”
Petitioner cites the
following from Chiongbian vs. Commission on
Elections, L-19202, December 11, 1961:
“Wherefore, we believe the Commission acted correctly in
holding there was no valid proclamation and in ordering the Board to reconvene
to make a valid one. But we do not
believe it has powers to order the Provincial Board [of Canvassers] to use in
such new canvass the copies in its possession of the returns of Precinct No. 7
of Tangub and Precinct No. 2 of Concepcion. In our opinion, a situation has arisen
wherein the proclamation should be suspended to enable one party to seek a
recount under Sec. 163 of the Revised Election Code; there being now before the
Board a discrepancy between the copy in the provincial board’s possession and
that on file with the Commission on Elections.”
The Chiongbian
case bears analysis. There, discrepancy
existed between the words and figures in one return and a variance in the
result from two precincts between the Provincial Treasurer’s copy and the copy
of the Comelec.
This discrepancy was not attributed to tampering or obvious fraudulent
practices. Naturally, the facts in the Chiongbian case precisely called for the application of
Section 163 because all copies were “authentic copies.” The mistake
could be attributed to clerical error.
Therefore, as provided in said codal provision
(Sec. 163), the remedy is to ask the Court of First Instance for a recount of
votes cast in the precincts involved for purposes of determining “which
is the true statement or which is the true result of the count of the
votes” cast therein, for the office in question.
Unlike the Chiongbian case, the dispute before this Court does not
involve contradictory statements between two copies of the election
returns. Here, one is falsified after
the election returns were signed by and left the hands of the inspectors, and
this is confirmed by the testimony of the chairmen of all the six precincts in Aglipay here involved.
And then as Comelec, in its resolution of December 26, 1963, aptly observed:
“In the Chiongbian case (supra), the
election return in question arrived at the office of the provincial treasurer
in the normal course and time of mail transmission and in proper
condition. In the present case, all the
six copies of the election returns, following a common pattern, unaccountably
disappeared for a relatively long period of time, and then arrived at the place
of canvassing with the envelopes containing them already opened at one end, the
paper seals on the election returns themselves already broken, and the entries
of votes for the candidates for the office of governor already falsified. The said election returns therefore arrived
at the place of canvassing in violation of the basic regulations of the
Commission and provisions of the Election Law designed to preserve their integrity
and validity. In short, what were presented
to the board of canvassers for canvassing were, specifically with respect to
the votes for the candidates for office of governor, no longer election
returns, but spurious statements which cannot be used in the canvass.”
Really, to allow canvassing with the falsified copies of the
returns and thereafter require respondent Dumlao to
procure recounting, is to stir up inducement to fraudulent schemes to defeat
the voters’ will.
Besides, to stave off indiscriminate application of Section 163,
heretofore quoted, this Court, in Lawsin vs. Escalona, L-22548, July 31, 1964 (citing Parlade vs. Quicho, L-16259,
December 29, 1959), made the pronouncement that –
“judicial recount of votes under Section 163 – ‘is a special
authority conferred on the Court and must be restrictively construed,
so as not to extend to other cases that may, more or less, bear some
resemblance to the situation described in said sections’; that the discrepancy
between the statement and another copy or other authentic copies thereof
(mentioned in sections 163 and 168) means a variance existing between
copies of the statement of the election
returns presented by the local treasurers
to the respective boards of canvassers,
‘exclusively’, as stated in Calang vs.
Miranda, 86 Phil. 316, 320; and that a discrepancy between the election returns
and a certificate issued to the watchers is not a ground for a recount, because
said certificate is not the authentic copy of the statement of election returns
contemplated by the law.
x x x
The special nature and limited scope of the summary judicial
recount provided by section 168 of the Election Code is admittedly aimed at
delaying as little as practicable the proclamation of the winning candidate, without
prejudice to a thorough revision of the election results in proper cases by
means of the corresponding election protest, which is the normal process
provided for the purpose. To multiply
the grounds for a recount of votes before a proclamation by the
board of canvassers is made has the
effect of downgrading the election protest
as a remedy, and to prolong the periods during which the
contested positions will remain without an occupant, thereby provoking
suspicion, conjecture, and unrest.”[5]
Comelec, by specific articulation in Section 3 of
the Revised Election Code, possesses supervisory powers over board of
canvassers. The latter cannot, with
impunity, disregard any order of the Comelec made in
pursuance of the Comelec’s constitutional duty of
enforcement and administration of all laws relative to the conduct of
elections,[6] and of insuring free, orderly, and honest
elections. It certainly is within the
realm of Comelec’s concerns to direct that only
genuine returns be considered where, as here, dastardly attempts were made to
subvert the people’s choice by a resort to patently doctored returns.[7] To interpose objection thereto is to deny
protection to the sanctity of the ballot.
2. Petitioner assails Comelec’s order
for a new board of canvassers to canvass the votes after the original board
allegedly has proclaimed petitioner.
We go deep into the question of whether the original board of
canvassers actually signed the certificate of canvass on the date appearing on
the face thereof (December 26, 1963) as alleged by petitioner. Or, whether there was no such meeting of the
board on that date, and the signatures were procured at different times and
places after December 27, 1963,
as alleged by respondent.
Sufficient is the record
to give us the proper bases for the resolution of this question. Reference is made to the following: Comelec, on December
5, 1963, directed
the board of canvassers to use in the canvass the Municipal Treasurer’s copies
of the returns – not those of the Provincial Treasurer – from Aglipay, with the warning that disobedience will result in suspension
and annulment of the canvass made
for said municipality. On December
7, 1963, the board
filed a motion to reconsider that order.
This motion was denied on December 26, 1963. And
yet, six members of this board, purportedly without waiting for this resolution
of the Comelec (the Provincial Fiscal not included),
on the very same day, December 26, 1963, allegedly signed the certificate of canvass and
proclamation declaring petitioner Corazon M. Espino
Governor-elect.
That no meeting was actually held by the board of canvassers on December 26, 1963 is borne by three
indubitable documents.
First. The telegram
of the Provincial Fiscal, board chairman, of December 28, 1963 advising Comelec
that he had set the board meeting to canvass – not recanvass
– for December 30, 1963. He did so after he had received telegraphic
notice of the December 26 resolution.
Second. The letter
of the same Chairman to Comelec dated December 29, 1963 (received on the
same day) stating that “[i]n view of the request
of the other Members of the Board, x x x I therefore inform the Commission that I am transferring
the scheduled canvass x x x to January 1st at 9:00 a.m., x x x.”
If it were really true
that a meeting was had on December 26, 1963, it
seems strange that the certificate of canvass and proclamation aforesaid does
not bear the signature of the Provincial Fiscal. He is the Chairman; he directs the course of
action of the board; he calls the members to meetings. Instead, after receipt of Comelec’s
resolution of December 26, this responsible official twice set the dates for canvass,
in line with Comelec’s
said resolution. If there was a canvass on December 26, the
Provincial Fiscal, the board chairman, would have known it. He could have told Comelec
on those two occasions that there was no need to meet to canvass; there was
already a complete canvass, and the certificate of
canvass and proclamation had already been signed,
on December 26, 1963.
Third. The petition for certiorari and prohibition filed
in this Court on December 29, 1963 by petitioner Corazon M. Espino
against Comelec, the provincial board of canvassers
of Nueva Vizcaya, and
Patricio Dumlao (L-22278) praying for the annulment
of Comelec’s two resolutions: that of December 5, 1963 directing the use of
copies for the Municipal Treasurer of Aglipay of
election returns from that municipality, instead of those for the Provincial
Treasurer; and the other resolution of December 26, 1963, in effect denying the
board of canvassers’ motion to reconsider, reiterating the directive set forth
in the resolution of December 5.
Paragraph 11 of that petition in L-22278 is revealing. It reads:
“11. That the resolutions of the respondent Commission [December
5 and 26] is [are] prejudicial to the rights and interest of herein petitioner
in that the use of the municipal treasurer’s copy will amount to a re-canvass, will
unduly delay her proclamation and her
assumption of the office of Provincial
Governor of Nueva Vizcaya; and tantamount to usurpation by respondent
Commission on Elections of judicial power vested only in the Courts;”.[8]
This averment, verified on oath by petitioner herself, betrays
the fact that as of the date of
the petition for certiorari and prohibition – December 29, 1963 – the certificate of canvass and
proclamation of Corazon M. Espino as Governor-elect had not yet been
signed. For, in the quoted averment in
paragraph 11, petitioner complained of the possible undue delay
in her proclamation and assumption of office of Provincial
Governor.
There is no question in our mind that if it were true that the
board of canvassers actually met and signed the certificate of canvass and
proclaimed Corazon M. Espino Governor-elect on
December 26, 1963, Jose G. Espino – then the
Provincial Governor and one of those who signed the certificate – would have
lost no time to inform the alleged Governor-elect of her proclamation. Are the Espinos not
husband and wife? Not even the naive
would take for a fact that as late as December
29, 1963 – three days after the alleged proclamation – Corazon M. Espino was still ignorant thereof, such that for that
reason she was impelled to file
the aforesaid petition for certiorari and prohibition.
With a certificate of canvass
and proclamation thus antedated, the six members of the original board of
canvassers (the Provincial Fiscal not included) had sought to confront
respondents Comelec and Dumlao
with a fait acompli, to force Dumlao to seek relief in the courts of justice, and to
fraudulently open the way for petitioner to sit as Governor pending judicial
determination. This is an attitude which
this Court unhesitatingly rejects.
This Court has been firm
in upholding the power of the Comelec to investigate
irregularities in the canvass of election returns, suspend proclamation of
elected candidates and, if warranted, annul the canvass.[9] In fact, the very case of Chiongbian, upon which petitioner leans heavily for
support, makes the following avowal of the Comelec’s
supervisory power:
“This Court finds no sufficient reason to doubt the accuracy
of the Commission’s findings and agrees that the proclamation, if any, made by
the provincial board of canvassers, was null and void, ab
initio, for disregard of its instructions issued
before the date of the elections. x x x. [The proclamation] was made
in disregard of the instructions of the Commission, the attention of the Board
having been previously called to the discrepancy between the words and the
figures in one of the returns, and to the obvious alterations in the returns of
Precinct No. 2 of Concepcion and Precinct No. 7 of Tangub, and the Commission’s representative having
furthermore ordered suspension of the canvass in view of such
irregularities.”
Where, as in this case, with contumacy, the original board of canvassers disobeyed Comelec’s order to use genuine copies of returns, and
instead made an irregular proclamation of one of the candidates with the use of
unassailably falsified copies of returns which are decisive of the result of
the election, Comelec is, certainly, with power to
direct a canvass with the use of genuine documents.[10] For, that proclamation of the original board
of canvassers is null and void.[11] And,
for purposes of a canvass, substitutes for the erring members of the board of
canvassers may be appointed.[12]
3. Last to be considered is whether or not the substitute board of
canvassers, which proclaimed respondent Patricio Dumlao
Governor-elect, was validly constituted.
The text of Section 158, Article
XI of the Revised Election Code, reads:
“SEC. 158. Provincial
board of canvassers. – The provincial board of canvassers shall
be composed of the provincial governor, the members of the provincial board,
the provincial treasurer, the provincial auditor and the provincial
fiscal. In Manila
and other chartered cities it shall be composed of the mayor, the municipal
board or city council and the city fiscal.”
We observe, however, that
the original provincial board of canvassers was composed of the following:
(1)
Provincial Governor – Jose G. Espino
(2)
Provincial Vice-Governor –
substituted by Artemio Tiangco,
Highway District Engineer
(3)
Member, Provincial Board – Eficio Acosta
(4)
Member, Provincial Board –
substituted by Ramon V. Purugganan, Register of Deeds
(5)
Provincial Treasurer – Gavino Pe Benito
(6)
Provincial Auditor – Lorenzo Purificacion, and
(7)
Provincial Fiscal – Juan P. Aquino, as Chairman of the Board,
The record does not show
the reason for the substitution of the Vice Governor by the Highway District
Engineer; and that of a member of the Provincial Board by the Register of
Deeds.
Their substitutes are:
(1)
Melecio
A. Genato, First Assistant Fiscal – Chairman
(2)
Miguel M. Guevara, Clerk of Court,
CFI, NV
– Member
(3)
Rodolfo Q. Agbayani,
Deputy Clerk of Court – Member
(4)
Tomas P. Maddela
II, Municipal Judge, Bayombong, Nueva
Vizcaya – Member
(5)
Honorato
A. Mendoza, Officer-in-Charge, DEC – Member
(6)
Ramon V. Purugganan,
Register of Deeds – Member, and
(7)
Eulogio de Guzman, Div. Supt. of Schools – Member.
Section 159, Article XI
of the Revised Election Code, provides:
“SEC. 159. Incapacity
and substitution of provincial canvassers.
– In cases of absence or incapacity for any cause of the members of the
provincial board of canvassers, the Commission on Elections may appoint as
substitutes the superintendent of schools, the district engineer, the district
health officer, the register of deeds, the clerk of Court of First Instance, or
the justice of the peace of the
capital. In chartered cities the Commission
may appoint the officers corresponding to those enumerated.”
It will be seen right
away that only (1) the Division Superintendent of Schools, Eulogio
de Guzman; (2) the Register of Deeds, Ramon V. Purugganan;
(3) the Municipal Judge of Bayombong, Tomas P. Maddela II; and (4) the Clerk of Court of First Instance,
Miguel M. Guevara, are amongst those specific officials set forth in Section
159. In addition, (5) the
Officer-in-Charge of the District Health Office, Honorato
A. Mendoza, qualifies under Section 159 because at that time the District
Health Officer had already retired. The
District Engineer, Artermio Tiangco,
should be the number (6) substitute. But
he could not have been appointed as such because he was, though a substitute,
one of those original members of the board who could not be located. To complete the membership under Section 158
to seven (7), the Provincial Fiscal should also be in. But his whereabouts, too, were unknown. In his absence, the First Assistant Fiscal
headed the office. So, the appointment of
First Assistant Fiscal Melecio A. Genato,
as Chairman, was proper. The Assistant
Provincial Fiscal acts for and in the absence of the Provincial Fiscal.
The result is that the
only member of the substitute board whose official designation does not appear
in Sections 158 and 159 is Deputy Clerk of Court Rodolfo Q. Agbayani.
The members of the
substitute board of canvassers, who met on January 2, 1964 and signed the certificate of canvass and
proclamation of respondent Patricio Dumlao as
Governor-elect, are the following:
(1)
Melecio
A. Genato – First Assistant Fiscal, Chairman
(2)
Tomas P. Maddela
II – Municipal Judge, Bayombong, Nueva
Vizcaya, Member
(3)
Miguel M. Guevara – Clerk of
Court, Court of First Instance, Nueva Vizcaya, Member
(4)
Honorato
A. Mendoza – Officer-in-Charge, District Health Office, Member, and
(5)
Rodolfo Q. Agbayani
– Deputy Clerk of Court, Court of First Instance, Member and Secretary.
Two of the members of the
new board, namely, Ramon V. Purugganan, Register of
Deeds, and Eulogio de Guzman, Division Superintendent
of Schools, were absent thereat.
Considering that there
are seven members of the provincial board of canvassers, four constitute a
quorum.[13] Even if Agbayani
were eliminated, still there is a quorum.
This is composed of the first (4) in the list just mentioned. The result is that the certificate of canvass
and proclamation of Patricio Dumlao is valid.
But we do not stop here.
There is still the question as to whether or not Rodolfo Q. Agbayani, Deputy Clerk of Court, Court of First Instance,
could legally be appointed as member
of the substitute board, given the fact that he is not one of the
officials designated in either Section 158 or 159.
Section 3, Article I of the Revised Election Code, provides that Comelec “may suspend from the performance” of
“duties relative to the conduct of elections” any provincial,
municipal, and city officials designated by law to perform such duties
“who shall fail to comply with its instructions, orders, decisions, or
rulings and appoint their temporary substitutes.”
Of course, whether the substitutes qualify under the law is another matter
altogether. Adverting to Section 159 of
the Revised Election Code, we find that the Comelec may
appoint as substitutes the persons therein named, (1) the superintendent
of schools, (2) the district engineer, (3) the district health officer, (4) the
register of deeds, (5) the clerk of the Court of First Instance, or (6) the
justice of the peace of the capital.
Unquestionably, if the officials just named are available, Comelec has no choice.
They should first be harnessed into the service.
But the situation that the case before us presents, requires
analysis. Pointed out earlier is the
fact that, by statute (Section 158 of the Election Code), the provincial board
of canvassers consists of seven members:
the provincial governor; the three members of the provincial board; the
provincial treasurer; the provincial auditor; and the provincial fiscal. There is a gap. For, all the seven were unavailable. And Section 159 following provides only for
six substitutes.
Our view is that Deputy Clerk Agbayani
was lawfully named as the
seventh member of the board. His
appointment – a necessity to complete the membership – is not assailed on the
ground that he is not qualified to do the work of canvasser. In fact, we should say that with his position, he is presumed to be unbiased and
with sufficient learning to perform the duties of a member of the board.
Canvassing and proclamation of provincial elective officials are matters of public concern. The Revised Election Code, we are sure, does
not countenance unnecessary delay in proclamation. The interests of the province so demand. The law would not require that canvassing and
proclamation be stopped, and resume only until such time as all the officials mentioned in
Sections 158 and 159 would undertake to perform the task by the election law
imposed upon them. True it is that
coercive measures could be adopted. Comelec may institute
contempt proceedings under Rule 64 of the Rules of Court.[14]
It may even recommend to the President
the removal of the said officials on grounds of non-feasance,
malfeasance or misfeasance.[15] These measures alone, we are constrained to
state, will only spawn further delays in the canvassing and proclamation.
We, therefore, hold that the appointment of Deputy Clerk Rodolfo
Q. Agbayani as member of the substitute board of
canvassers for the Province of Nueva Vizcaya,
is valid.
As we reach this
conclusion, we are not unaware of the decision of this Court in Torres vs.
Ribo, 81 Phil. 44. But Torres vs. Ribo is not
to be read as applicable here. In that
case, of the six members required to constitute the board of canvassers, five
made the first proclamation of November 22, 1947 declaring Mamerto
S. Ribo elected to the office of Provincial Governor
of Leyte. Four
constitute a quorum. Two of the members,
namely, substitutes Vicente Tizon, Assistant Civil
Engineer, and Evaristo Pascual,
Chief Clerk of the Division Superintendent of Schools, in the words of this
Court, “acted without appointment, commission, or any color of
title” (at p. 50). With these two
eliminated, there was no quorum (at p. 51).
Therefore, the proclamation was void. It is true that in the Torres
case (p. 48) statement was made that the express enumeration in Section 159 of
the Revised Election Code “excludes other officers” upon the
principle of expresio unius
est exclusio alterius. But
our case is out of the area in which this principle is controlling. All those in Section 159 were – except
when unavailable – taken in as substitutes.
It just so happened that seven members are required by Section
158 and Section 159 provides only for a list of six substitutes. Necessarily, one must be taken from
elsewhere. Verily, differences in basic
facts between the Torres case and the present induce different legal
conclusions. In the first, the
substitutes were no substitutes at all; here, the substitutes were legal
substitutes.
To conclude, we must say that in the resolution of the problems
which here confront us, we have in mind the following guidelines drawn by the
late Chief Justice Jose Abad Santos, thus:
“The Commission on Elections is a constitutional body. It is intended to play a distinct and
important part in our scheme of government.
In the discharge of its functions, it should not be hampered with
restrictions that would be fully warranted in the case of a less responsible
organization. The Commission may err, so
may this court also. It should be allowed
considerable latitude in devising means and methods that will insure the accomplishment
of the great objective for which it was created – free, orderly and honest
elections. We may not
agree fully with its choice of means,
but unless these are clearly illegal or
constitute gross abuse of discretion, this
court should not interfere. Politics is a practical matter, and political
questions must be dealt with realistically – not from the standpoint of pure
theory. The Commission on Elections,
because of its fact-finding facilities, its contacts with political
strategists, and its knowledge derived from actual experience in dealing with
political controversies, is in a peculiarly advantageous position to decide
complex political questions.”[16]
The net result is that
the certificate of canvass and proclamation of Patricio Dumlao
as Governor-elect of the Province of Nueva Vizcaya, made by the substitute board of election
inspectors on January 2, 1964 and confirmed by Comelec
on January 4, 1964,
is valid and binding.
We, accordingly, vote to dismiss the petition herein. Costs against petitioner.
SO ORDERED.
Concepcion, C.J., Reyes, JBC,Dizon, Makalintal, Bengzon, Ruiz Castro, Angeles, and Fernando, JJ., concur.
Zaldivar, J., did not take part.
[1]
Emphasis supplied.
[2] Emphasis supplied.
[3] Emphasis supplied.
[4] 29 C.J.S., pp. 342-343.
[5] Emphasis supplied.
[6] Cauton vs. Commission on Elections, L-25467,
April 27, 1967.
[7] This Court, in the Cauton
case, supra, made the following pronouncement:
“x x x The Commission on
Elections has a duty to enforce this law, and it has the duty to see to it that
the election returns to be used for canvassing must be genuine and authentic,
not falsified or tampered with. Where
the election returns produced by the provincial treasurer have been shown to
have been tampered or falsified, 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, x x x.”
[8] Emphasis supplied.
[9] Mintu vs. Enage,
L-1836, December 31, 1947; Ramos vs. Commission on Elections, 80 Phil.
722; Abendante vs. Relato,
94 Phil. 8; 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, L-22248,
January 30, 1965; and Cauton vs. Commission on
Elections, supra.
[10] Olano vs. Ronquillo,
supra.
[11] In pari materia: Santos vs. Commission on Elections, supra.
[12] Javier vs. Commission on Elections, supra
[13] Santos vs. Commission on Elections, supra.
[14] Section 5, Revised Election Code.
[15]
Section 3, id.
[16] Sumulong vs. Commission on Elections, 73 Phil.
288, 294-295; emphasis supplied.