SAIDAMEN B. PANGARUNGAN, PETITIONER, VS. COMMISSION ON ELECTIONS AND MAHID MUTILAN, RESPONDENTS.

In this special civil action for certiorari under Rule 65 of
the Rules of Court, in relation to Section 7, Article IX-A of the 1987
Constitution, petitioner would have this Court set aside and annul, for having
been issued with grave abuse of discretion or lack of jurisdiction, (a) the 18
September 1992^[1]
joint Resolution of the First Division of respondent Commission on Elections
(COMELEC) in SPC No. 92-349, SPC No. 92-378-379, SPC No. 92-387, and SPC No.
92-391, and (b) the 23 October 1992^[2] en
banc Resolution of the COMELEC affirming, in SPC No. 92-349^[3]
and SPC No. 92-387,^[4]
the abovementioned 18 September 1992 Resolution of the First Division.

In the Resolution of 29 October 1992, this Court required the
respondents to Comment on the Petition within a non-extendible period of ten
(10) days, and issued a temporary restraining order directing the respondent
COMELEC to cease and desist from enforcing the questioned resolutions, more
particularly the portion thereof which directs the Provincial Board of
Canvassers to reconvene and prepare a new set of certificate of canvass on the
basis of the results taken from the COMELEC’s copies of the Election Returns
for the uncontested^[5]
Provincial Elective Positions.

On 6 November 1992, private respondent filed an Urgent Motion To
Lift the Temporary Restraining Order to which, upon order of this Court, the
petitioner filed a Comment.

On 9 November 1992, respondent COMELEC, through the Office of the
Solicitor General, filed its Comment to the petition.

Although this Court granted the petitioner’s motion to file a
Reply to the public respondent’s Comment on or before 22 November 1992, none
has been filed as of the writing of this Decision.

Considering the allegations and issues raised and the arguments
adduced by the parties in the petition and the subsequent pleadings indicated
above, this Court hereby resolves to consider the private respondent’s Urgent
Motion To Lift the Temporary Restraining Order as his Comment and Answer, and
the Comment of respondent COMELEC as its Answer thereto; and to decide this
case on its merits.

These facts are not disputed.

Petitioner and the private respondent were candidates for the
Office of the Provincial Governor of Lanao del Sur in the synchronized
elections of 11 May 1992.

During the canvassing of the certificates of canvass for
provincial offices by the Provincial Board of Canvassers (PBC) of Lanao del
Sur,^[6]
private respondent objected to the inclusion of Certificate of Canvass (COC)
No. 667635 of the Municipality of Madamba, Lanao del Sur; petitioner opposed
this move. Consequently, both parties
submitted their evidence to the PBC. Private respondent relied on the Investigation Report of Atty. Clarita
Callar, the joint affidavit of Attys. Abdul Aguam, Marohombsar and Datu Dacula
and other affidavits. Petitioner then
formally offered documentary exhibits consisting of the Minutes of the PBC
proceedings of 6 June 1992, the urgent manifestation dated 6 June 1992 and the
joint affidavit, also dated 6 June 1992, of Alexander Dimaporo and Pendatun
Panguinaguina — members of the Municipal Board of Canvassers (MBC) of Madamba
— to support his opposition to the objection.^[7]

On 20 June 1992, the PBC handed down a unanimous ruling^[8]
the dispositive portion of which reads:

“The Provincial Board of Canvassers of Lanao del Sur,
unanimously decided not to include in the count/canvass the Certificate of
Canvass of Madamba said having (sic) been substituted and spurious (sic).”

This ruling is based primarily on the Investigation Report of
Atty. Clarita Callar who was directed by the Chairman of the PBC to investigate
the Madamba incident.

So far as is relevant to this case, two (2) appeals assailing the
said ruling were interposed before the COMELEC. The first is an appeal of the herein petitioner, which was
docketed as SPC No. 92-387, while the second is the appeal of Pala Dipatuan,
which was docketed as SPC No. 92-391. Petitioner does not deny the allegation of the private respondent that
he (petitioner) enclosed, in his appeal, all his documentary evidence and
affidavits of his witnesses and that all the records and evidence submitted to
the PBC were elevated to the COMELEC.^[9]

Instead of assigning SPC No. 92-387 and the related cases to a
Division pursuant to pertinent provisions of its Rules,^[10]
the COMELEC en banc took cognizance thereof and set the case for hearing
on 6 August 1992. At the said hearing,
the parties, through their respective counsels, upon suggestion of the COMELEC en
banc, agreed to submit their respective Position Papers.^[11]
On 8 August 1992, petitioner’s counsel submitted a Consolidated Position Paper
in SPC No. 92-349 and SPC No. 92387 raising the following issues:

“A. WHETHER OR NOT THE PROCEEDINGS OF THE MBC
LEADING TO THE PREPARATION AND SUBMISSION OF COC NO. 667635 AND THE SUPPORTING
SOV ARE VALID AND BINDING?

B.   WHETHER
THE PROCEEDINGS OF THE MBC COULD BE LEGALLY SET ASIDE OR ANNULLED AFTER IT
BECAME FUNCTUS OFFICIO?

C.   WHETHER
PBC IS CLOTHE (sic) WITH AUTHORITY TO EXCLUDE MOTU
PROPIO COC NO. 667635 AND THE SUPPORTING
SOV?

D.   WHETHER
THE PERSONAL PERCEPTION OR BELIEF OF THE MEMBERS OF THE PBC COULD BE A VALID
BASIS FOR THE EXCLUSION MOTU PROPIO OF COC NO. 667635 BY THE PBC?

E.   WHETHER
THE PBC ABUSED ITS DISCRETION IN EXCLUDING COC NO. 667635 AND THE SUPPORTING
SOV?

F. WHETHER THE COMMISSION EN BANC CAN EXERCISE ORIGINAL JURISDICTION OVER
THE APPEALS, BY PASSING (sic) THE COMELEC DIVISIONS IN VIOLATION OF ART. IX (C)
SECTION 3 OF THE CONSTITUTION

G. WHETHER THE COMMISSION ACTED PROPERLY IN
OPENING AND EXAMINING THE ELECTION RETURNS OF MADAMBA WITHOUT THE PRESENCE OF
THE CONCERNED PARTIES”^[12]

and praying for the following reliefs:

“WHEREFORE, it is most respectfully prayed of the Honorable
Commission En Banc that:

1.  
the REPORT/RULING ON
THE MADAMBA CASE dated June 20, 1992 excluding COC No. 667635 of Madamba from the
canvass be set aside, revoked or annulled;

2.     
The PBC be ordered to reconvene and to include in the canvass
COC No. 667635 of Madamba;

3.     
SPC No. 92-349 filed by petitioners Dimaporo and Mutilan be
dismissed for clear lack of merit and legal basis;

4.     
The (sic) above case be assigned to a DIVISION in conformity
with the constitution and the duly promulgated (sic) Rules of Procedure (sic)
of the Commission;

5.     
that if true that election returns are being inspected
privately, absent the parties, that the same be discontinued immediately”^[13]

Taking heed of Our Resolution of 6 August 1992 in Sarmiento
vs. Commission on Elections, et al. (G.R. No. 105628) and companion cases,
the COMELEC raffled off SPC No. 92-387; as a result thereof, the First Division
got the case. It consolidated this case
with SPC No. 92-349, SPC Nos. 92-378/379 and SPC No. 92-391.

On 18 September 1992, the First Division promulgated a joint
Resolution in these consolidated cases affirming the PBC’s ruling which
excluded COC No. 667635 of Madamba from the canvass and ordering the PBC to
prepare a new set of certificate of canvass based on the COMELEC copies of the
Election Returns for the uncontested (later changed to contested) Provincial
Elective Positions. With respect to the
latter, it made the following observations and conclusions:

“The above attendant circumstances, tend to establish the fact
that the COC and SOV have not been regularly prepared, as such the same could
not be made as a sound basis in determining the true and genuine results of the
votes casts (sic) for the municipal and provincial candidates in Madamba.

In view of the foregoing, the physical examination of the Comelec’s
copy of the election returns becomes necessary to determine its genuineness and
authenticity. That such an examination
would not be in disregard of the summary nature of a pre-proclamation
proceeding nor (sic) the provisions of Sec. 15 of RA 7166 with respect to the
Congressional race as the COMELEC has been given ample power ‘to decide all
questions affecting election returns including the verification of the number
of votes received by opposing candidates in the election returns as compared to
the statement of votes in order that the true will of the people is known.’ If
there is clear evidence of discrepancy between the number of votes for a
precinct as compared to the number of votes the candidates actually received
during the counting at the precinct, it is the duty of the COMELEC to see to it
that the matter should be verified from the election returns as a pre-proclamation
controversy. It cannot wash its hands
by asking the candidates to bring the matter to the electoral tribunal as an
election protest. (Villamoyo vs.
Comelec, G. R. No. 79646-67, November 13, 1987).

Since the Commission has the power to direct that only genuine
election returns and certificates of canvass be considered (Ong vs. Comelec, 22
SCRA 241), in the exercise of its constitutional power, the Commission may
look, into the election returns of the Municipality of Madamba, Lanao del Sur. This is the most speedy and inexpensive
remedy to settle this controversy.”^[14]

The decretal portion of the Resolution reads:

“WHEREFORE, premises considered, this Division hereby RESOLVES
the following:

1. AFFIRMS the Proclamation of the winning
Mayoralty candidate in the Municipality of Madamba, Lanao del Sur;

2. DIRECTS the Provincial Board of Canvassers
to reconvene and prepare a new set of certificate of canvass on the basis of
the results taken from the COMELEC’s copy of the Election Returns for the uncontested
Provincial Elective Positions;

3. DIRECTS the Provincial Board to consolidate
the COC of Madamba with all other uncontested COC’s and thereafter Proclaim the
Winning Candidates as the records warrant.

SO ORDERED.”^[15]

The Callar report, as quoted in the Resolution, reads as follows:

“At about 10:30 p.m. June 5, 1992, Alexander Dimaporo
Municipal Treasurer and Pendatun Punginagina, DECS Supervisor, both of Madamba,
Lanao del Sur, in the company of 5 military personnels (sic) whom the affiants
were able to identify as elements of the 39th IB because of the presence of
M/Sgt. Purisima and Sgt. Amatorio whom they personally know to belong to the
said IB, entered the gymnasium looking for Sgt. Francisco of the 5th IB on the
pretext that their Commanding Officer has an order for him and since, the 5th
IB is under the operational control of the 39th IB, the group was able to enter
the said gymnasium and once inside, the Municipal Treasurer, Alexander Dimaporo
went directly to where the ballot boxes are (sic) piled and forcibly opened one
of them destroying the lid in the process which later turned out to be the
ballot box with Serial No. CE 9223696 containing the Statement of Votes and
Certificate of Canvass of the municipality of Madamba, and then and there in
the presence of said military personnels (sic) of the 39th IB said Municipal
Treasurer took out the Statement of Votes from the forcibly opened ballot box
and handed it to one of his soldier companion (sic) and when some of the
watchers present tried to stop him, the soldiers with him got mad and one of
then (sic) even hit one of the watchers while the others pointed their guns at
the other watchers and party representatives to include (sic) the elements of
the 5thIB which action almost ended in a shootout except for the intervention
to (sic) the Commanding Officer of the 5th IB as well as of the Platoon leader
2nd Lt. Fernando Canes, who feared a (sic) shootout may result in the hitting
of innocent civilians who were inside the gymnasium at that time. But when the group however sensed that the
elements of the 5th IB were ready to fight them by deploying themselves the
group left hurriedly but only after bringing with them all the contents of the
forcibly opened ballot box.

The following day, May (June) 6, 1992 at about 9:30 a.m. per
affidavit executed by Ibrahim MaxDigadong, Nacionalist representative, the
above-named Municipal Treasurer and DECS Supervisor returned to the MSU
gymnasium bring (sic) with them another ballot box with Serial No. 8903946 whom
(sic) they attempted to mix with the other ballot boxes but which the military
security placed apart to identify it from those previously received.

Looking at the ballot box with Serial No. CE 9223696 previously
submitted on June 5, 1992, it is very evident that it was really forcibly
opened as shown by the destroyed cover and ballot (sic) box with Serial No. CE
8903946 was brought to the MSU gymnasium only in the morning of June 6, 1992
which the Receiving Committee refused to receive under proper receipt since
ballot (sic) box with Serial No. 9223696 was already submitted for the
municipality of Madamba.”^[16]

This decision was not unanimous. In his dissent thereto, Commissioner Magdara Dimaampao pointed out that
there was a violation of due process when the First Division, contrary to
Section 2, Rule 27 of the COMELEC Rules of Procedure which requires summary
hearing after due notice, accepted the Report of Atty. Callar without
conducting any hearing to afford the petitioner the right or opportunity to confront
the latter; Dimaampao further stressed that the election returns should be
resorted to only if it is established through a hearing that the COC in
question is indeed spurious.

On 23 September 1992, petitioner filed under the caption of SPC
No. 92-349 and SPC No. 91-387 only, a Motion For Reconsideration Ex
Abundante Cautela^[17]
alleging therein:

“1. THAT THE
FIRST DIVISION COMMITTED A VERY GRAVE ERROR WHEN IT RELIED SOLELY AND
COMPLETELY ON THE ‘REPORT’ OF A CERTAIN ATTY. CALLAR, AND THE SUBSEQUENT ‘RULING’
OF THE PROVINCIAL BOARD OF CANVASSERS OF LANAO DEL SUR, WITHOUT EVEN VERIFYING
FOR ITSELF THE WHO, THE HOW, THE WHY AND THE WHEN OF THE NUMEROUS INCIDENTS
CONCERNING THE CONTROVERSY OF MADAMBA INVOLVING THE PREPARATION OF THE
MUNICIPAL CERTIFICATE OF CANVASS OF MADAMBA, WHICH IT RULED TO BE DISREGARDED
DESPITE ITS HAVING NO DEFECT WHATSOEVER;

2. THAT THE FIRST DIVISION WAS LIKEWISE IN GRAVE ERROR WHEN IT CASUALLY
RESORTED TO THE ALLEGED RESULTS OF THE ‘COMELEC COPY’ OF THE ELECTION RETURNS
OF ALL PRECINCTS OF MADAMBA, BY EXAMINING AND INSPECTING ONLY ONE ‘SELECTED’
COPY OF ITS CHOICE AND WITHOUT EVEN NOTIFYING AND ALLOWING THE PARTIES TO
PARTICIPATE IN THE OPENING AND EXAMINATION THEREOF, ALL IN CLEAR CONTRAVENTION
OF EXISTING JURISPRUDENCE AND IN VIOLATION OF THE EXPRESS PROVISIONS OF LAW;
and

3. THAT THE FIRST DIVISION GRIEVOUSLY ERRED
WHEN IT DIRECTED THE PROCLAMATION OF WINNING CANDIDATES, WITHOUT AWAITING THE
RESULTS OF OTHER MUNICIPALITIES WHICH ARE STILL PENDING BEFORE THE OTHER
COMELEC DIVISION.”^[18]

Pursuant to the Constitution and the
COMELEC Rules of Procedure, the motion for reconsideration had to be resolved
by the COMELEC en banc.^[19]
Before the latter could resolve the same, however, the petitioner filed on 21
October 1992 a Motion for the disqualification of Commissioner Haydee B. Yorac
on the ground that for the past several weeks, she has been projected to the
public as the Chairperson of the National Unification Committee (NUC); she has
also presented herself to the public as such, indicating her acceptance of the
position. Petitioner believes that this
public position or office is constitutionally incompatible with her present
position as a Commissioner of the COMELEC. Hence, pursuant to Section 2, Article IX-A of the present Constitution
which provides, inter alia, that “No member of a Constitutional
Commission shall, during his tenure, hold any other office or employment,”
she is deemed resigned from her present position.

On 23 October 1992, the COMELEC en banc promulgated the
challenged Resolution^[20]
affirming the 18 September 1992 Resolution of the First Division and finding
the errors imputed to the latter to be without merit. As to the report of Atty. Callar, the Acting Provincial Election
Supervisor of North Cotabato, the COMELEC held that the same was prepared in
the performance of official duty, per instruction of COMELEC Regional Director
Teresita Llaban, and is therefore presumed to have been performed with
regularity. The COMELEC further stated
that it “would be so absurd for this Commission to have its field
personnel perform their task and at the same time question their
actuations.” Citing Cauton vs. Comelec,^[21]
it asserted that if the Commission is convinced that the election returns in
the hands of the board of canvassers do not constitute the proper basis in
ascertaining the true result of the elections, it is duty bound to take the
necessary steps in order that the proper basis for the canvass is made
available; it would be absurd to say that the Commission has a legal duty to
perform and at the same time it is denied the necessary means to perform that
duty. Thus, when the First Division
issued the challenged Resolution, it merely performed its mandated duty under
the Constitution to enforce and administer laws and regulations relative to the
conduct of elections.

As to the First Divisions’s ruling on the matter of the COMELEC
copies of the election returns being made the basis for the preparation of a
new COC, the COMELEC en banc stated:

“When the First Division resorted to the Comelec’s copy of the
Election Returns of Madamba as contained in the ballot box No. CE?92
375697, its object was to determine the result of the elections based on the
official election returns. ‘An order to
this effect does not affect the right to vote or the validity of any vote cast,
so that it is perfectly within the power of the COMMISSION to issue such an
order in the exercise of its exclusive power to administer and enforce the laws
relative to the conduct of elections.’ (Cauton vs. Comelec 19 SCRA 911) To
sustain the petitioner-appellant in the present Motion for Reconsideration is
to deny this Commission the power to retrieve the Comelec copies of the
election returns in order that the true number of votes cast for a candidate
may be known and thus permit a canvass on the basis of Certificate of Canvass
that are reportedly falsified.

Petitioner-Appellant contends that the basic election document
provided for by law and the Comelec’s own promulgated resolutions in
proclaiming the winning candidates for provincial offices is none other than
the Municipal Certificate of Canvass, accompanied by the supporting Statement
of Votes. He stresses that in the case
of Madamba, both the COC and the SOV are clean and untampered in (sic) their
faces, thus should not have been excluded.

This Commission is well aware of the foregoing rule. Had there been no reported incident of
ballot box switching, this Commission would have completely relied on the
alleged clean and untampered COC as allegedly reported by the Municipal Board
of Madamba. But the mere fact that the
same appears to be clean an (sic) untampered is not also proof enough that they
are genuine, bearing in mind the report of Atty. Callar which herein petitioner-appellant
also failed to prove that it is fabricated and or baseless. Technicalities, which are not conducive to
free, orderly and honest elections, but in (sic) the contrary may defeat the
will of the sovereign people as expressed in their votes, should not be allowed
to hamper the Commission on Elections in the performance of its duties (Cauton
vs. Comelec, 19 SCRA 911). ‘The choice
of means taken by the Commission on Elections, unless they are clearly illegal
or constitute grave abuse of discretion, should not be interfered with. (Sumulong vs. Comelec, 73 Phil. 288).

Perusal of the resolution of the First Division as to the
proclamation of the winning candidates show (sic) that it is not absolute as
shown by the phrase ‘as the records warrant.’ So much so that if there are
still pending cases before the other division (sic) regarding the election of
provincial elective positions in Lanao del Sur, then it follows that it cannot
proclaim any winning candidate yet for definitely, the records do not warrant
the same.”^[22]

Petitioner then filed the instant petition raising therein the
following issues: (1) the total lack or
absence of due process in the proceedings before the COMELEC’s First Division
when it, inter alia, resolved the appeal from the ruling of the PBC of
Lanao del Sur without any semblance of a hearing to assess the factual findings
of said PBC and merely on the basis of the report of Atty. Callar who was never
interviewed, questioned or interrogated by the COMELEC; rejected and
disregarded the clean, clear, authentic, duly signed and executed Municipal
Certificate of Canvass for Madamba; and ruled to use and avail of selected
copies of the election returns without any notice to and without the presence
and participation of the parties; (2) the total disregard by the COMELEC en
banc of its own Rules when it resolved the motion for reconsideration
without any hearing as mandated by Section 6, Rule 19 of the COMELEC Rules of
Procedure; and (3) the participation and vote of Commissioner Yorac who, as
petitioner claims, is no longer a member of the Commission.

We find no merit in the petition.

No violation of due process, amounting to grave abuse of
discretion or lack of jurisdiction, was committed by the COMELEC’s First
Division when it promulgated the Resolution of 18 September 1992 without any
hearing, and by the COMELEC en banc when it likewise resolved
petitioner’s motion for reconsideration without a hearing.

Before the subject cases were raffled off to the First Division,
the parties, upon the suggestion of the COMELEC en banc, agreed to
submit the appeals on the basis of their position papers. Petitioner extensively discussed in his
position paper the issues raised and the evidence to support the latter’s
thesis that the COC in question is clean, clear, authentic and duly signed and
executed. Thus, the factual issue
raised at that point was whether the questioned COC is spurious or not — a
question which must be resolved on the basis of the evidence adduced by the
parties before the PBC pursuant to paragraph (e), Section 9, Rule 27 of the
COMELEC Rules of Procedure, which provides:

“(e) At the hearing, no new evidence shall be
received, unless for good reasons shown, it is clearly and convincingly
established that the applicant was deprived of due process by the board of
canvassers.”

and paragraph (h), Section 20 of R.A. No.
7166,^[23]
which provides:

“(h) On the basis of the records and evidence
elevated to it by the board, the Commission shall decide summarily the appeal within
seven (7) days from receipt of said records and evidence. Any appeal brought before the Commission on
the ruling of the board, without the accomplished forms and the evidence
appended thereto, shall be summarily dismissed.

The decision of the Commission shall be executory after the lapse
of seven (7) days from receipt thereof by the losing party.”

The records do not disclose that the petitioner had moved before
either the COMELEC en banc or its First Division that he be allowed to
present new evidence on the ground that he was deprived of due process by the
PBC. In any case, he could not have
done that because the PBC had in fact allowed him to present his evidence. That he was not allowed to cross-examine
Atty. Callar did not in any way whittle down the validity of the proceedings of
the PBC for paragraph (e), Section 8, Rule 27 of the COMELEC Rules of Procedure
provides that:

“(e) Where evidence is to be offered, reception
thereof shall be done summarily. Oral
testimonies shall be dispensed with and the parties shall be required to
present their affidavits or counter-affidavits within twenty-four (24) hours
from the presentation of the written objection. The evidence adduced shall form part of the proceedings of the
Board.”

The PBC faithfully complied with the
mandate of this provision; moreover, the parties voluntarily and
unconditionally observed the same by submitting their evidence which included
the affidavits of their respective witnesses.

It is precisely for this reason, and his awareness of the legal
consequences thereof, that the petitioner carefully avoided characterizing the
Callar report as “hearsay”. Nowhere in his pleadings are We to find any objections to the Callar
report on that ground. Petitioner
purposely omitted such argument because he knew only too well that the Callar
report is an official act of an officer of the COMELEC made after an
investigation conducted in the performance of a lawful official duty. It thus enjoys the presumption of
regularity.^[24]
Besides, by the parties’ compliance with the aforesaid paragraph (e), Section
8, Rule 27 of the COMELEC Rules of Procedure, petitioner was estopped from
objecting to the admission in evidence of the Callar report, in effect leaving
to the PBC — and then the First Division of the COMELEC on appeal — the
determination of the factual issue concerning the validity of the COC in
question. More importantly, the Callar
report falls under Section 44, Rule 130 of the Rules of Court which provides
for an exception to the hearsay rule.^[25] The
Rules of Court applies suppletorily to proceedings before the COMELEC.^[26]
By agreeing to submit his position paper for the resolution of the appeal,
petitioner effectively agreed to dispense with the formality of a hearing, the
purpose or objective of which was better subserved by the submission of the
position papers where the parties could incorporate all that they wanted to
place on record; a formal hearing may not adequately achieve such purpose
because of the time constraints, the unpreparedness of counsel, the emotions of
the moment and the distracting atmosphere. Petitioner, however, tries to mock the solemnity and depreciate the
value of this agreement by stating that the proceedings before the COMELEC en
banc at the first instance were void because of Section 3, Article IX-C of
the Constitution and Our ruling in Sarmiento vs. COMELEC and companion
cases.^[27]
Such reasoning does not impress Us. The
binding force of the agreement was not tainted by the fact that it was made
before the COMELEC en banc before such body acquired jurisdiction over
the cases. In the first place,
petitioner voluntarily submitted his Position Paper in accordance with the
agreement he freely entered into. Secondly, he did not question the validity of the agreement in the issues
he raised and in the reliefs he prayed for therein. More pertinently, he only asks that the cases “be assigned
to a DIVISION in conformity with the constitution and the duly proomulgated
(sic) Rules of Proocedure (sic) of the Commission.”^[28]
This is a clear message of the irreversibility of his adherence to the
agreement to submit the appeal for resolution on the basis of the evidence and
records elevated by the PBC and the position papers submitted by the
parties. In the third place, nowhere in
his petition did the petitioner allege that his position paper was deemed
withdrawn or at least rendered ineffective by the subsequent assignment of the
appeal to the Division. He knew all
along that the agreement would be binding until the resolution of the appeal,
even if it would, following his view, be thereafter assigned to a
Division. Accordingly, it was no longer
necessary for the First Division to set the appeal for hearing. It could have already properly and validly
resolved it, as in fact it did, on the basis of the evidence and the records
elevated to it by the PBC,^[29] and
the position papers of the parties.

The First Division affirmed the PBC’s ruling that the questioned
COC is spurious, and found for itself that the attendant circumstances in this
case “tend to establish the fact that the COC and the SOV have not been
regularly prepared, as such the same could not be made as a sound basis in
determining the true and genuine results of the votes casts (sic) for the
municipal and provincial candidates in Madamba.”^[30]
These are findings on a factual issue which this Court accords the highest
respect. We have said, through then
Chief Justice Concepcion in Lucman vs. Dimaporo,^[31]
that this Court cannot review rulings or findings of fact of the Commission on
Elections as there is no reason to believe that the framers of the Constitution
intended to place the Commission, created and explicitly made independent
by the Constitution itself, on a lower level than ordinary administrative
organs, the findings of which are not even disturbed by courts of justice
except when there is absolutely no evidence or no substantial evidence to
support the same. These exceptions,
just as any other in respect to the rule on conclusiveness of findings of fact
of the Court of Appeals,^[32]
which may equally apply to the findings of fact of the COMELEC, are not present
in this case.

Having thus made such findings, it was well within the power of
the Commission, through the First Division, to determine what must be done to
ascertain the elusive “true and genuine results of the votes casts (sic)
for provincial and municipal candidates in Madamba.” The documents which
could logically be the basis therefor are any of the other available copies of
the COC with the supporting Statement of Votes (SOV), and any other available
copy of the election returns from all precincts in Madamba. The COC for President, Vice-President,
Senators, Members of the House of Representatives and elective provincial
officials are prepared in seven (7) copies to be distributed in the manner
provided for in Section 27 of R.A. No. 7166. In the election of local officials, the election returns are prepared in
six (6) copies to be distributed in the manner provided for in Section 27(a) of
the said law. In every case, the COMELEC
is provided with a copy.

The COMELEC’s judgment on this matter cannot be overturned by
this Court unless it is clearly tainted with grave abuse of discretion. The COMELEC’s First Division opted to resort
directly to its copies of the election returns and ordered the PBC to prepare a
new COC based thereon. This ruling is
not whimsical, capricious or arbitrary. It is reasonable and impressed with wisdom. Between another copy of the COC and the election returns, the
latter could provide a more accurate basis for the determination of the true
and genuine results of the votes cast. This is obvious because the former constitutes a mere summary of the
latter and errors, deliberate or otherwise, may be committed in entering
therein the figures obtained from the election returns. Besides, among the copies of the election
returns readily available to the Commission, those intended specifically for it
are the least likely to be tampered with after leaving the hands of the board
of election inspectors. Thus, the
wisdom of using such copies is beyond question. Petitioner, however, insists that the First Division should have
complied with Section 235 of the Omnibus Election Code which provides for the
use of “the other copies of said election returns and, if necessary, the copy
inside the ballot box.” In short, he wants that all other copies
of the election returns should be considered. This betrays an incorrect interpretation of the section. This quoted portion of the section he
stresses clearly shows that even one of the copies — that inside the
ballot box — is sufficient. Indeed,
said section does not require that all the other copies of the election returns
be taken into account and compared with one another before one of them,
determined to be authentic, may be used or included in the canvass. If this is the interpretation to be
followed, then the law would have required a condition which could be easily
rendered impossible to comply with; in effect, the law would be practically
meaningless or useless. As stated
earlier, the election returns are to be prepared in six (6) copies. The first copy is the municipal, city or
district board of canvassers’ copy. If,
for one reason or another, any of the remaining five (5) copies could not be
obtained by the board, following the interpretation and logic of petitioner,
the procedure laid down in Section 235 may no longer be availed of.

Resort to the COMELEC copies of the election returns of all the precincts
of Madamba did not, however, foreclose the right of the petitioner to object,
at the appropriate time, to the inclusion in the canvass of the PBC of any of
said returns pursuant to the pertinent paragraphs of Section 243 of the Omnibus
Election Code.

Neither did the COMELEC en banc commit any abuse of
discretion, much less grave abuse thereof amounting to lack or excess of
jurisdiction, when it promulgated its Resolution of 23 October 1992 affirming
the Resolution of 18 September 1992 of the First Division. As earlier adverted to, the agreement to
submit position papers dispensed with the formal hearing of the motion for
reconsideration.

As to the disqualification of Commissioner Yorac, the records do
not show that the COMELEC, to which the motion for disqualification is
addressed, has resolved it. Moreover,
the motion itself reveals that neither a copy thereof nor a notice of its
hearing was furnished Commissioner Yorac, the party sought to be disqualified. For this alone, the motion is nothing more
than a mere scrap of paper. Under the
COMELEC Rules of Procedure, notices of a motion shall be served by the movant
to all parties concerned at least three (3) days before the hearing thereof,
together with a copy of a motion. The
notice shall be directed to the parties concerned and shall state the time and
place of the hearing of the motion. No
motion shall be acted upon by the Commission or a Division without proof of
service of notice except when it is satisfied that the rights of the adverse party
are not affected.^[33]
Finally, petitioner did not implead Commissioner Yorac as a respondent in this
case. As the respondent in the motion
for disqualification, she is an indispensable party whose personality in
that respect is distinct and separate from that of the COMELEC of which she is
a Member. Hence, the issue against her
cannot be resolved in this case without infringing due process — the
Constitutional guaranty which petitioner himself insists upon, for his own
benefit, from the beginning to the end of his petition.

WHEREFORE, for lack
of merit, the instant Petition is DISMISSED with costs against petitioner.

The Temporary Restraining Order issued on 29 October 1992 is
hereby lifted.

This Decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin,
Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo, and Campos, Jr., JJ., concur.

^[1]
Annex “A” of Petition; Rollo, 31-41.

^[2]
Annex “B”, Id.; Id., 46-52.

^[3]
Entitled Sultan Mohamad Ali Dimaporo and Dr. Mahid Mutilan vs. The Board
of Canvassers of Madamba.

^[4]
Entitled Saidamen B. Pangarungan vs. Provincial Board of Canvassers of
Lanao del Sur.

^[5]
It appears in the Resolution of 23 October 1992 that the word uncontested
was corrected and substituted with the word contested per order of the
First Division of 24 September 1992.

^[6]
Then composed of Atty. Teresita Llaban (Regional Director of COMELEC) as
Chairman, Atty. Usmin Diamel as Vice-Chairman and Atty. Tingaraan Bangkero as
Member.

^[7]
Annex “E” of private respondent’s urgent motion to lift the temporary
restraining order; Rollo, 208.

^[8]
Annex “F”, Id.; Id., 209-210.

^[9]
Urgent motion to lift the temporary restraining order, 20; Id., 105.

^[10]
Section 9, Rule 27, in relation to Section 4, Rule 7, COMELEC Rules of Procedure.

^[11]
Rollo, 106.

^[12]
Id., 205.

^[13]
Rollo, 209-210.

^[14]
Rollo, 38.

^[15]
Rollo, 40-41.

^[16]
Rollo, 34-35.

^[17]
Annex “C” of petition; Rollo, 54-77.

^[18]
Rollo, 59.

^[19]
Section 3, Article lX-C, 1987 Constitution; Rule 19, COMELEC Rules of
Procedure.

^[20]
Annex “B” of Petition; Rollo, op. cit., 46-52.

^[21]
19 SCRA 911 [1967].

^[22]
Rollo, 50-51.

^[23]
An Act Providing For Synchronized National And Local Elections And For
Electoral Reforms, Authorizing Appropriations Therefor, And For Other Purposes.

^[24]
Section 3(m), Rule 131, Rules of Court.

^[25]
Said section reads:

“SEC.
44. Entries in official records. — Entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person
in the performance of a duty especially enjoined by law, are prima facie
evidence of the facts therein stated.”

^[26]
Section 1, Rule 43, COMELEC Rules of Procedure.

^[27]
Supra.

^[28]
Rollo, 300.

^[29]
Paragraph (h), Section 20, R.A. No. 7166 in relation to paragraph (e), Section
9, Rule 27, COMELEC Rules of Procedure.

^[30]
Rollo, 38.

^[31]
33 SCRA 387, 401 [1970]; see also Padilla vs. Commission on Elections,
137 SCRA 424 [1985].

^[32]
Tolentino vs. De Jesus, 56 SCRA 167 [1974]; Remalante vs. Tibe,
158 SCRA 138 [1988]; Medina vs. Asistio, Jr., 191 SCRA 218 [1990].

^[33]
Section 4 and 5, Rule 11.