Dumayas, Jr. vs. Commission on Elections

Election returns which are regular and authentic on their face cannot be excluded in a pre-proclamation controversy based on mere allegations of irregularities that would require reception of evidence aliunde. Where a party seeks to raise issues requiring the COMELEC to look beyond or behind election returns that are prima facie regular, the proper remedy is a regular election protest, not a pre-proclamation controversy.

Petitioner Rodolfo Dumayas, Jr. and private respondent Felipe Bernal, Jr. were rival candidates for the position of Municipal Mayor of Carles, Iloilo in the 11 May 1998 synchronized elections. The dispute concerns the canvassing of election returns from three precincts in Barangay Pantalan, which petitioner sought to exclude on grounds of alleged election law violations, terrorism, intimidation, and coercion. The case involves the application of the Omnibus Election Code provisions on pre-proclamation controversies and the COMELEC's jurisdiction over election matters, as well as the constitutional requirement on the vote requirement for COMELEC decisions under Article IX-A, Section 7 of the 1987 Constitution.

Petitioner Rodolfo Dumayas, Jr. and private respondent Felipe Bernal, Jr. were rival candidates for the position of Municipal Mayor of Carles, Iloilo in the 11 May 1998 synchronized elections. During the canvassing on 13 May 1998, election returns for precinct nos. 61A, 62A, and 63A/64A, all of Barangay Pantalan, were protested for inclusion in the canvass before the Municipal Board of Canvassers by petitioner. The grounds relied upon for their exclusion were identical: "violation of Secs. 234, 235, 236 of the Omnibus Election Code and other election laws; acts of terrorism, intimidation, coercion, and similar acts prohibited by law."

Petitioner submitted his evidence to the Board of Canvassers on 14 May 1998, consisting of joint affidavits executed by LAMMP watchers for precinct 61A (Teresita Oblido, Reyland de la Rosa, and Armando Flores, signed by Oblido and Flores only); an affidavit of petitioner's supporter Virgilisa Capao; a joint affidavit of precinct 63A watcher Nona Dichosa and precinct 62A watcher Daniel Carmona; a blotter report dated 12 May 1998 of Carles PNP, Iloilo; and a corroborating affidavit of LAMMP supporter Honorato Gallardo. All the affidavits contained similar attestations: certain local barangay officials were inside the polling place during the casting and counting of votes or acted as watcher of respondent; SPO3 Gilbert Sorongon, who was in shorts and t-shirt armed with an armalite, roamed around and inside the polling places; a CVO in uniform was roaming precinct 63A; the presence of the public officials posed threat and intimidation driving most of the watchers of other political parties away; the BEIs were so intimidated and coerced that no election return was prepared simultaneous with the tallying; the election returns were prepared under duress; the voters were coerced to vote for certain favored candidates especially respondent; petitioner's watchers were made to sign or affix their thumbmarks on the already prepared election returns; and in precinct 63A/64A, the voting ended at almost 9:00 P.M. without the BEI members writing the names of such voters.

Petitioner also submitted a certification issued by PO3 Tito Billones, Desk Officer of PNP Carles, representing the blotter report, which stated that on 12 May 1998, Virgilisa Capao reported to the Police Station of Carles, Iloilo that PO3 Sorongon and Brgy. Capt. Mahilum entered Precinct 63A in the company of other CVO and Brgy. Kagawad during election, and that these people gravely intimidated the voters by telling them the names of the candidates they should vote for. The certification also stated that PO3 Sorongon was not in his prescribed uniform when seen with hand grenades hanging on his neck and carrying an armalite roaming inside and outside the polling place.

Respondent Bernal, in vehemently denying the allegations, submitted joint affidavits of the members of the different Boards of Election Inspectors for precinct nos. 61A, 62A, and 63A/64A. All the supplemental affidavits of the different BEIs categorically declared that the elections in their respective precincts "starting from the start of the voting to its closing, to the counting of votes and to the preparation and submission of election returns" were peaceful, clean, orderly, and that no acts of terrorism, intimidation, coercion, and similar acts prohibited by law were exerted on anybody including the voters and members of the BEIs. They all attested that the incidents alleged by petitioner's watchers did not happen, and that the alleged terrorism, coercion, or violation of election laws were not true, the truth being that these people were only inside the polling place to exercise their right of suffrage. They also denied that the election returns were not simultaneously prepared with the tallying and counting of votes. Nody Mahilum and PO3 Gilbert Sorongon also executed a joint affidavit denying the accusations, stating that they only entered their respective precinct-polling place to exercise their right of suffrage and that the election in the three precincts was orderly, peaceful, and honest.

In the afternoon of May 14, 1998, the MBC denied petitioner's objection to the inclusion of the contested returns and proceeded with the canvass. The results of the voting were: for the contested precincts, Prec. 61A — Dumayas 44, Bernal 117; Prec. 62A — Dumayas 43, Bernal 114; Prec. 63A/64A (clustered) — Dumayas 54, Bernal 159; uncontested precincts total — Dumayas 7,636, Bernal 7,514; overall total — Dumayas 7,777, Bernal 7,904. Petitioner filed a Notice of Appeal before the MBC on May 15, 1998.

The COMELEC Second Division rendered a resolution dated August 4, 1998, excluding the three contested election returns and directing the MBC to reconvene and finish the canvass of the remaining or uncontested returns and thereafter proclaim the winning mayoralty candidate. On August 10, 1998, private respondent filed a motion for reconsideration with the COMELEC en banc. On August 12, 1998, an order certifying that the motion for reconsideration and records of the case were elevated to the COMELEC en banc was signed by Commissioner Julio F. Desamito and issued by the Clerk of the Commission.

Pending resolution of the motion for reconsideration, Election Officer Rolando Dalen set the reconvening of the MBC on August 13, 1998, for the continuation of canvass proceedings and proclamation of winning candidates for Vice-Mayor and Municipal Councilors. No winner for the position of Mayor was proclaimed since private respondent was able to present a copy of his motion for reconsideration before the MBC. The MBC then reset the date for reconvening on August 17, 1998, after confirming by phone with COMELEC-Manila that a motion for reconsideration was indeed filed. Thereafter, the MBC ruled that proclamation of the winning candidate for Mayor would proceed on August 17, 1998 unless private respondent could present a certification from the COMELEC that the motion for reconsideration was elevated to the en banc. On August 17, 1998, despite presentation of the August 12, 1998 order, petitioner was proclaimed winner of the election after excluding from the canvass the election returns from the three contested precincts. The MBC, with its Vice-Chairman dissenting, justified its act by reasoning that it did not receive an official copy of the order directing the elevation of the case to the en banc.

The following day, private respondent filed an urgent motion to declare void ab initio the proclamation of petitioner on the ground that the resolution of the COMELEC Second Division was not yet final and executory. Petitioner opposed both the motion for reconsideration and the motion to declare void ab initio his proclamation, asserting that private respondent failed to show palpable errors to warrant reconsideration and maintaining that his proclamation was legal since respondent failed to produce the certification required by the MBC. Meanwhile, on August 25, 1998, the duly-proclaimed Vice-Mayor Arnold Betita filed an action for quo warranto against petitioner before the Regional Trial Court of Iloilo, Branch 66, docketed as Spl. Civil Action No. 98-141, which included respondent Bernal as one of the petitioners. On September 18, 1998, petitioner filed before the COMELEC en banc a motion to expunge respondent Bernal's motions on the ground that Bernal should be deemed to have abandoned them by the filing of Spl. Civil Action No. 98-141, which petitioner characterized as a formal election protest via quo warranto brought before the regular courts.

In a resolution dated August 24, 1999 but promulgated on March 2, 2000, the COMELEC en banc denied petitioner's motion to expunge, reversed the Second Division Resolution, annulled petitioner's proclamation, and constituted a new Municipal Board of Canvassers composed of Atty. Nelia Aureus as Chairman, Atty. Rosel Abad as Vice-Chairman, and Atty. Manuel Lucero as Third Member, all of the Election Contests and Adjudication Department of the Commission. The new board was directed to convene at the Session Hall of the COMELEC Main Office in Manila on the tenth day from the date of promulgation, to complete the canvassing of all the returns and proceed with the proclamation of the true winner. Petitioner was directed to cease and desist from performing the functions of the office of mayor. The Law Department was directed to investigate the election offense allegedly committed by PO3 Gilbert Sorongon on election day. On March 13, 2000, respondent Bernal was proclaimed by the newly-constituted MBC as the duly-elected Mayor, thereby unseating petitioner.

• Abandonment of Motions: Petitioner argued that respondent Bernal should be deemed to have abandoned his motion for reconsideration and motion to declare petitioner's proclamation void ab initio before the COMELEC en banc, considering that respondent, together with Arnold Betita, filed an election case through a quo warranto before the Regional Trial Court of Iloilo, Branch 66, docketed as Case No. 98-141.

• Exclusion of Election Returns: Petitioner argued that the COMELEC erred in upholding the inclusion for canvass of the three election returns for precinct nos. 61-A, 62-A, and 63-A/64-A (clustered), notwithstanding that there was clear and sufficient evidence to show that the election returns for these precincts were prepared under duress and not prepared simultaneously with the counting of votes.

• Invalidity of Resolution Due to Retired Commissioners: Petitioner argued that the Resolution promulgated on March 2, 2000 was illegal and violative of Article IX(A) Section 7 of the Constitution because only four commissioners voted to reverse the Resolution dated August 4, 1998 of the Second Division, and two commissioners had already retired at the time of the promulgation.

• Validity of Proclamation: Private respondent Bernal argued that the proclamation of petitioner was void ab initio because the resolution of the COMELEC Second Division was not yet final and executory at the time of the proclamation, and that the MBC acted improperly in proceeding with the proclamation despite the presentation of the August 12, 1998 order certifying the elevation of the motion for reconsideration to the en banc.

• Abandonment of Motions: Whether respondent Bernal, who was named as petitioner in the quo warranto proceedings commenced before the regular court, should be deemed to have abandoned the motions he had filed with respondent Commission.

• Inclusion of Contested Election Returns: Whether the COMELEC erred in ordering the inclusion of the contested election returns in the canvassing of ballots.

• Effect of Retired Commissioners' Votes: Whether, in view of the retirement of Commissioners Gorospe and Guiani before the date of the promulgation of the assailed resolution on March 2, 2000, said resolution should be deemed null and void for being violative of Article IX-A, Section 7 of the 1987 Constitution.

• Abandonment of Motions: No. Respondent Bernal did not effectively abandon his pending motions before the COMELEC en banc by the filing of Spl. Civil Action No. 98-141, because the petition filed by Vice-Mayor Betita was neither a quo warranto petition under the Omnibus Election Code nor an election protest, but an action for the annulment of petitioner's proclamation on the ground of illegality and prematurity, over which COMELEC exercises original exclusive jurisdiction.

• Inclusion of Contested Election Returns: No. The COMELEC en banc correctly reversed the Second Division by holding that petitioner failed to justify the exclusion of the contested returns on the ground of duress, intimidation, threat, or coercion, since the grounds for exclusion relied upon by petitioner are not proper in a pre-proclamation case, which is summary in nature.

• Effect of Retired Commissioners' Votes: No. The withdrawal of the votes of retired Commissioners Gorospe and Guiani did not invalidate the resolution, because the remaining votes among the four incumbent commissioners at the time of the resolution's promulgation would still be 3 to 1 in favor of respondent, and these remaining commissioners still constituted a quorum.

• Abandonment of Motions: The Court applied the general rule that the filing of an election protest or a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. However, the Court noted that the general rule admits of exceptions, including where the proclamation was null and void, where quo warranto was not the proper remedy, or where what was filed was not really a petition for quo warranto or an election protest but a petition to annul a proclamation. Examining the petition filed primarily by Vice-Mayor Betita, the Court found that it was neither a quo warranto petition under the Omnibus Election Code nor an election protest. A petition for quo warranto under the Omnibus Election Code raises in issue the disloyalty or ineligibility of the winning candidate, while an election protest is a contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of the returns. The allegations in Betita's petition did not present any proper issue for either remedy. The Court determined that Spl. Civil Action No. 98-141 was in the nature of an action for usurpation of public office brought by Betita to assert his right to the position of Mayor pursuant to the rules on succession of local government officials contained in the Local Government Code. Although denominated as a quo warranto petition under Rule 66 of the Rules of Court, it was different in nature from the quo warranto provided for in the Omnibus Election Code. The Court applied the rule that the nature of the action is determined by the averments in the complaint or petition and not the title or caption thereof. The material stipulations of the petition substantially stated that the proclamation of petitioner was illegal and null and void from the very beginning for being done in violation of law and under duress, and that the determination of Betita's right would ultimately hinge on the validity of petitioner's proclamation. Thus, the Court concluded that the "quo warranto" petition brought by Vice-Mayor Betita was actually a petition to annul petitioner's proclamation over which COMELEC exercises original exclusive jurisdiction, and it could not be deemed a proper remedy in favor of respondent Bernal even if his name was included in the title of said petition.

• Inclusion of Contested Election Returns: The Court held that where a proclamation is null and void, it is no proclamation at all, such that the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to declare such nullity and annul the proclamation. Although petitioner's proclamation was undertaken pursuant to the resolution of the COMELEC's Second Division, the Court found that the Second Division grievously erred in ordering the exclusion of the contested returns. The only evidence submitted by petitioner to prove the alleged irregularities were self-serving affidavits executed by his watchers and supporters. These allegations were countered by opposing affidavits made by the members of the Boards of Election Inspectors who are presumed to have regularly performed their duties and who categorically denied the allegations. The election returns were also observed to be genuine, clean, signed and/or thumbmarked by the proper officials and watchers. The Court applied the well-entrenched rule that findings of fact by the COMELEC, or any other administrative agency exercising particular expertise in its field of endeavor, are binding on the Court. In a pre-proclamation controversy, the board of canvassers and the COMELEC are not required to look beyond or behind the election returns which are on their face regular and authentic. Where a party seeks to raise issues the resolution of which would necessitate the COMELEC to pierce the veil of election returns which are prima facie regular, the proper remedy is a regular election protest, not a pre-proclamation controversy. The Court noted that petitioner barely alleged that the preparation of the returns was attended by threats, duress, intimidation, or coercion without offering any proof, other than the affidavits, that these had affected the regularity or genuineness of the contested returns. Absent any evidence appearing on the face of the returns that they are indeed spurious, manufactured, or tampered with, the election irregularities cited by petitioner would require the reception of evidence aliunde which cannot be done in a pre-proclamation controversy. Returns cannot be excluded on mere allegation that they are manufactured or fictitious when the returns, on their face, appear regular and without any physical signs of tampering, alteration, or other similar vice. If there had been sham voting or minimal voting made to appear as normal through falsification of the election returns, such grounds are properly cognizable in an election protest and not in a pre-proclamation controversy.

• Effect of Retired Commissioners' Votes: The Court applied the ruling in Jamil vs. Commission on Elections, which held that a decision becomes binding only after its promulgation. If at the time it is promulgated, a judge or member of the collegiate court who had earlier signed or registered his vote has vacated office, his vote on the decision must automatically be withdrawn or cancelled. Accordingly, the votes of Commissioners Gorospe and Guiani should merely be considered as withdrawn for the reason that their retirement preceded the resolution's promulgation. The effect of the withdrawal of their votes would be as if they had not signed the resolution at all, and only the votes of the remaining commissioners would be properly considered for the purpose of deciding the controversy. However, unless the withdrawal of the votes would materially affect the result insofar as votes for or against a party is concerned, there is no reason for declaring the decision a nullity. In the present case, with the cancellation of the votes of retired Commissioners Gorospe and Guiani, the remaining votes among the four incumbent commissioners at the time of the resolution's promulgation would still be 3 to 1 in favor of respondent. These remaining commissioners still constituted a quorum. The defect cited by petitioner did not affect the substance or validity of respondent Commission's disposition of the controversy, and the nullification of the challenged resolution would merely prolong the proceedings unnecessarily.

• Doctrine of Promulgation and Withdrawal of Votes — A decision becomes binding only after its promulgation. If at the time it is promulgated, a judge or member of the collegiate court who had earlier signed or registered his vote has vacated office, his vote on the decision must automatically be withdrawn or cancelled. The effect of the withdrawal is as if the retired member had not signed the resolution at all, and only the votes of the remaining members are properly considered. Unless the withdrawal materially affects the result insofar as votes for or against a party is concerned, the decision is not a nullity. The Court applied this doctrine in holding that the votes of retired Commissioners Gorospe and Guiani were deemed withdrawn, but the remaining 3-to-1 vote among the four incumbent commissioners still constituted a valid majority and quorum.

• Doctrine of Abandonment of Pre-Proclamation Controversy — The filing of an election protest or a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. The reason is that once the competent tribunal has acquired jurisdiction of an election protest or a petition for quo warranto, all questions relative thereto will have to be decided in the case itself and not in another proceeding, so as to prevent confusion and conflict of authority. The doctrine admits of exceptions: (a) the board of canvassers was improperly constituted; (b) quo warranto was not the proper remedy; (c) what was filed was not really a petition for quo warranto or an election protest but a petition to annul a proclamation; (d) the filing of a quo warranto petition or an election protest was expressly made without prejudice to the pre-proclamation controversy or was made ad cautelam; and (e) the proclamation was null and void. The Court applied the exceptions in finding that the petition filed by Vice-Mayor Betita was actually an action to annul petitioner's proclamation, not a proper quo warranto or election protest, and therefore respondent Bernal did not abandon his pending motions.

• Doctrine of Pre-Proclamation Controversy and Election Returns — In a pre-proclamation controversy, the board of canvassers and the COMELEC are not required to look beyond or behind the election returns which are on their face regular and authentic. Where a party seeks to raise issues the resolution of which would necessitate the COMELEC to pierce the veil of election returns which are prima facie regular, the proper remedy is a regular election protest, not a pre-proclamation controversy. Returns cannot be excluded on mere allegation that they are manufactured or fictitious when the returns, on their face, appear regular and without any physical signs of tampering, alteration, or other similar vice. The Court applied this doctrine in affirming the COMELEC en banc's reversal of the Second Division, holding that the grounds for exclusion relied upon by petitioner were not proper in a pre-proclamation case, which is summary in nature.

• Doctrine of Determination of Action by Averments — The nature of an action is determined by the averments in the complaint or petition and not the title or caption thereof. The Court applied this rule in determining that Spl. Civil Action No. 98-141, although denominated as a quo warranto petition, was actually an action for the annulment of petitioner's proclamation on the ground of illegality and prematurity, over which COMELEC exercises original exclusive jurisdiction.

• "In Jamil vs. Commission on Elections, we held that a decision becomes binding only after its promulgation. If at the time it is promulgated, a judge or member of the collegiate court who had earlier signed or registered his vote has vacated office, his vote on the decision must automatically be withdrawn or cancelled." — This passage articulates the controlling doctrine on the effect of retirement of a member of a collegiate body before promulgation, which the Court applied to the votes of Commissioners Gorospe and Guiani.

• "In a pre-proclamation controversy, the board of canvassers and the COMELEC are not required to look beyond or behind the election returns which are on their face regular and authentic. Where a party seeks to raise issues the resolution of which would necessitate the COMELEC to pierce the veil of election returns which are prima facie regular, the proper remedy is a regular election protest, not a pre-proclamation controversy." — This passage states the canonical formulation of the rule limiting the scope of pre-proclamation controversies, which was the central basis for affirming the COMELEC en banc's reversal of the Second Division.

• "Returns can not be excluded on mere allegation that the returns are manufactured or fictitious when the returns, on their face, appear regular and without any physical signs of tampering, alteration or other similar vice. If there had been sham voting or minimal voting which was made to appear as normal through falsification of the election returns, such grounds are properly cognizable in an election protest and not in a pre-proclamation controversy." — This passage defines the evidentiary threshold for excluding election returns in a pre-proclamation case, requiring that the irregularity appear on the face of the returns themselves.

• Jamil vs. Commission on Elections, 283 SCRA 349, 371 (1997) — Controlling precedent on the doctrine that a decision becomes binding only after its promulgation, and that the vote of a member who vacates office before promulgation must be automatically withdrawn or cancelled. The Court applied this doctrine to the votes of retired Commissioners Gorospe and Guiani.

• Samad vs. COMELEC, 224 SCRA 631, 638 (1993) — Cited for the distinction between a petition for quo warranto under the Omnibus Election Code, which raises the issue of disloyalty or ineligibility of the winning candidate, and an election protest, which is a contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of ballots. Also cited for the general rule on abandonment of pre-proclamation controversies.

• Laodenio vs. COMELEC, 276 SCRA 705, 713-714 (1997) — Cited for the exceptions to the general rule that the filing of an election protest or petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts to abandonment of one earlier filed.

• Torres vs. COMELEC, 270 SCRA 583, 588-589 (1997) — Cited for the principle that where a proclamation is null and void, it is no proclamation at all, such that the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to declare such nullity and annul the proclamation.

• Matalam vs. COMELEC, 271 SCRA 733, 756 (1997) — Cited for the presumption that the members of the Boards of Election Inspectors regularly performed their duties, which the Court considered in weighing the conflicting affidavits.

• Cordero vs. COMELEC, 310 SCRA 118, 126 (1999) — Cited for the well-entrenched rule that findings of fact by the COMELEC, or any other administrative agency exercising particular expertise in its field of endeavor, are binding on the Court.

• Chu vs. COMELEC, 319 SCRA 482, 492 (1999) — Cited for the rule that in a pre-proclamation controversy, the board of canvassers and the COMELEC are not required to look beyond or behind the election returns which are on their face regular and authentic.

• Salih vs. COMELEC, 279 SCRA 19, 32 (1997) — Cited for the rule that returns cannot be excluded on mere allegation that they are manufactured or fictitious when the returns, on their face, appear regular and without any physical signs of tampering, alteration, or other similar vice.

• Article IX-A, Section 7, 1987 Constitution — The constitutional provision on the vote requirement for COMELEC decisions. The Court applied this provision in determining whether the retirement of two commissioners before promulgation invalidated the resolution, holding that the remaining votes among the four incumbent commissioners still constituted a valid majority and quorum.

• Sections 234, 235, 236, Omnibus Election Code — The election law provisions cited by petitioner as grounds for the exclusion of the contested election returns, relating to election offenses and prohibited acts during elections. The Court held that the alleged violations of these provisions were not proper grounds for exclusion in a pre-proclamation controversy.

• Section 253, Omnibus Election Code — The provision defining quo warranto under the election code, cited in the distinction between a quo warranto petition under the Omnibus Election Code and an action for usurpation of public office under Rule 66 of the Rules of Court.

• Rule 66, Rules of Court — The procedural rule on quo warranto proceedings, which the Court distinguished from the quo warranto provided for in the Omnibus Election Code, noting that the petition filed by Vice-Mayor Betita, although denominated as a quo warranto petition under Rule 66, was different in nature.

• Local Government Code — The statute providing the rules on succession of local government officials, pursuant to which Vice-Mayor Betita asserted his right to the position of Mayor in Spl. Civil Action No. 98-141.

Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concurred.