Perman vs. COMELEC

A ballot found to contain the handwriting of two or more persons is presumed to have suffered that defect before it was cast, but this presumption is rebuttable by evidence that the ballot was tampered with after deposit in the ballot box; once rebutted, the ballot remains valid. A ballot is marked and void when the voter designly placed a superfluous sign or mark serving to identify the ballot thereafter, and no ballot should be discarded as marked unless its character as such is unmistakable.

Petitioner Laisan T. Perman and private respondent Lino Landong Iddong Garcia were duly certified candidates for Punong Barangay of Barangay Tipo-Tipo Proper, Tipo-Tipo, Basilan, in the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections. Private respondent was proclaimed the winner by the Barangay Board of Canvassers by a margin of sixty-seven votes. The dispute centered on the proper appreciation of contested ballots under the Omnibus Election Code, specifically the rules governing ballots written by two persons and ballots bearing distinguishing marks.

Petitioner Laisan T. Perman and private respondent Lino Landong Iddong Garcia were rival candidates for Punong Barangay of Barangay Tipo-Tipo Proper, Tipo-Tipo, Basilan, in the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections. The Barangay Board of Canvassers proclaimed private respondent the winner by a margin of sixty-seven votes.

Petitioner filed an election protest with the Municipal Circuit Trial Court (MCTC) of Lamitan, Tipo-Tipo-Tuburan, Lamitan, Basilan, docketed as Election Protest Case No. 11-02. After revision of ballots, the MCTC invalidated eighty-three ballots in favor of private respondent for being marked and deducted them from his total votes. On 9 July 2004, the MCTC rendered a decision declaring petitioner the winner by thirteen votes.

Private respondent appealed to the Commission on Elections (COMELEC), docketed as EAC No. 58-2004. On 23 February 2005, the COMELEC First Division validated the ballots that the MCTC had invalidated and ruled in favor of private respondent, who thereby emerged as the winning candidate by a margin of sixty-seven votes. Petitioner filed a Motion for Reconsideration, which the COMELEC En banc denied on 31 July 2006.

The contested ballots comprised sixty-five ballots credited to private respondent and two ballots credited to petitioner. As to the sixty-five ballots, petitioner contended they should be invalidated for having been written by two persons. As to the two ballots for petitioner, the COMELEC En banc invalidated them for being marked, specifically because they contained encircled numbers "16" and "15," respectively, in the voter's own handwriting after petitioner's name. The COMELEC En banc had similarly invalidated eleven ballots for private respondent bearing analogous identifying marks.

• Ballots Written by Two Persons: Petitioner contended that the sixty-five ballots validated by the COMELEC En banc in favor of private respondent should be invalidated for having been written by two distinct persons, pursuant to Section 211(23) of the Omnibus Election Code.
• Marked Ballots for Petitioner: Petitioner argued that the two ballots invalidated by the COMELEC En banc as marked should instead have been credited to him, consistent with the poll body's rulings on similarly situated ballots of private respondent and with the rules of appreciation of ballots favoring validity in case of doubt to uphold the will of the voters.
• Grave Abuse of Discretion: Petitioner asserted that the COMELEC En banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in its appreciation of the contested ballots.

• Ballots Written by Two Persons: Whether the COMELEC En banc committed grave abuse of discretion in validating sixty-five ballots for private respondent that appeared to have been written by two persons.
• Marked Ballots: Whether the COMELEC En banc committed grave abuse of discretion in invalidating two ballots for petitioner as marked.
• Finality of COMELEC Findings: Whether the COMELEC's factual findings on ballot appreciation are reviewable under a petition for certiorari under Rule 64.

• Ballots Written by Two Persons: No. The COMELEC En banc did not commit grave abuse of discretion, the presumption that the ballots suffered the defect before casting having been rebutted by evidence of post-deposit tampering.
• Marked Ballots: No. The two ballots were properly invalidated as marked, the encircled numbers placed immediately after the candidate's name constituting an unmistakable identifying mark.
• Finality of COMELEC Findings: No. Under Rule 64, Section 5 of the Rules of Court, findings of fact of the COMELEC supported by substantial evidence are final and non-reviewable.

• Ballots Written by Two Persons: Section 211(23) of the Omnibus Election Code provides that any ballot which clearly appears to have been filled by two distinct persons before it was deposited in the ballot box is totally null and void. The Court explained, citing Trajano vs. Inciso, that the validity of such a ballot depends on its condition before it was cast: if it was filled by one person when cast but later tampered with, it remains valid; if it already bore the handwriting of two or more persons when cast, it is void. A presumption juris tantum arises that the defect existed before casting, but this presumption is rebuttable. In this case, the COMELEC En banc found that the presumption had been overcome, following Columbres vs. COMELEC. Its findings were that (1) only one and the same person made the insertions across all contested ballots from three different precincts, as shown by the singular handwriting characterizing the insertions; (2) that person deliberately used a pen color different from the original voter's, even overwriting his own pen color when it happened to match; and (3) the insertions were redundant, adding private respondent's name even when the original voter had already written a clear vote for him. These findings established that the ballots were tampered with after deposit and were therefore valid.

• Marked Ballots: The Court applied the established doctrine that a ballot is marked when the voter designly placed a superfluous sign or mark that might serve to identify the ballot thereafter, and that no ballot should be discarded as marked unless its character as such is unmistakable. Exhibits 24 and 24-A contained the encircled numbers "16" and "15," respectively, in the voter's own handwriting after petitioner's name. The Court found no plausible reason for placing those numbers immediately after the candidate's name — the mark being too big for a period — except to identify the ballot. The COMELEC En banc had applied the same standard in invalidating eleven ballots for private respondent bearing analogous marks, demonstrating consistent application of the rule.

• Finality of COMELEC Findings: The petition was brought under Rule 64 of the Rules of Court, under which findings of fact of the COMELEC supported by substantial evidence are final and non-reviewable. The Court found no reason to depart from this principle, as the COMELEC's findings were supported by substantial evidence arrived at through close scrutiny of each contested ballot.

• Presumption Juris Tantum on Ballots Written by Two Persons — A ballot found to contain the handwriting of two or more persons is presumed to have suffered that defect before it was cast, but this presumption is rebuttable by evidence showing the ballot was tampered with after deposit in the ballot box. If the tampering occurred after deposit, the ballot remains valid; if the handwriting of two or more persons was already present when the ballot was cast, the ballot is void. The Court applied this doctrine by affirming the COMELEC's finding that the presumption was overcome by evidence of post-deposit tampering — specifically, the singular handwriting of insertions across precincts, the deliberate use of contrasting pen colors, and the redundancy of the insertions.

• Marked Ballots Doctrine — A ballot is considered marked and void when the voter designly placed a superfluous sign or mark on the ballot that might serve to identify it thereafter. No ballot should be discarded as marked unless its character as such is unmistakable. The identifying mark must have been placed with the intention of facilitating identification, thereby defeating the secrecy of suffrage. The Court applied this doctrine by upholding the invalidation of ballots bearing encircled numbers immediately after the candidate's name, finding the marks too conspicuous to serve any purpose other than identification.

• Finality of COMELEC Factual Findings Under Rule 64 — Under Section 5, Rule 64 of the Rules of Court, findings of fact of the COMELEC supported by substantial evidence are final and non-reviewable. The Court applied this principle by declining to disturb the COMELEC's factual findings on ballot appreciation, finding them supported by substantial evidence.

• "The allowance or rejection of a ballot filled by more than one person depends on its condition before it was cast in the ballot box: If at the time it was cast it was filled only by one person, but thereafter it was tampered and entries were made thereon by other persons, the ballot is valid. If, on the other hand, it already bore the fillings of two or more persons when cast, said ballots are deemed marked and thus void." — This passage, quoted from Trajano vs. Inciso, articulates the controlling rule for distinguishing valid ballots tampered after deposit from void ballots written by two persons before casting.

• "In order for a ballot to be considered marked, in the sense necessary to invalidate it, it must appear that the voter designly placed some superfluous sign or mark on the ballot which might serve to identify it thereafter. No ballot should be discarded as a marked ballot unless its character as such is unmistakable." — This formulation defines the canonical standard for invalidating marked ballots, requiring both a design to identify and unmistakable character as marked.

• "The distinguishing mark which the law forbids to be placed on the ballots is that which the elector may have placed with the intention of facilitating the means of identifying said ballot, for the purpose of defeating the secrecy of suffrage which the law establishes." — This passage states the rationale underlying the prohibition on marked ballots: the protection of the secrecy of suffrage.

• Trajano vs. Inciso, No. L-23895, 16 February 1967, 19 SCRA 340 — Controlling precedent on the rule governing ballots written by two persons. The Court quoted its formulation distinguishing valid ballots tampered after deposit from void ballots bearing the handwriting of two or more persons when cast. The rule in Trajano was applied to affirm the COMELEC's finding that the presumption of pre-casting defect was rebutted.
• Columbres vs. COMELEC, G.R. No. 142038, 18 September 2000, 340 SCRA 609 — Followed on the point that the presumption juris tantum of pre-casting defect can be overcome by evidence of post-deposit tampering.
• Protacio vs. De Leon, No. L-21135, 8 November 1963, 9 SCRA 472 — Cited as analogous authority for invalidating a ballot marked with an "X" immediately after the candidate's name, supporting the invalidation of ballots bearing encircled numbers after the candidate's name.
• Sarenas vs. Generoso, 61 Phil. 549 (1935) — Cited for the principle that great care must be exercised in rejecting ballots as marked.
• Valenzuela vs. Carlos and Lopez de Jesus, 42 Phil. 428 (1921) — Cited for the standard that a ballot must not be discarded as marked unless its character as such is unmistakable.
• Lucero vs. De Guzman, 45 Phil. 852 (1924) — Cited alongside Valenzuela and Cailles for the doctrine on marked ballots and identifying marks.
• Cailles vs. Gomez, 42 Phil. 496 (1921) — Cited for the definition of a distinguishing mark as one placed with the intention of facilitating identification of the ballot.

• Section 211(23), Omnibus Election Code (B.P. Blg. 881) — Provides that any ballot which clearly appears to have been filled by two distinct persons before it was deposited in the ballot box during the voting is totally null and void. The provision was applied to determine the validity of the sixty-five contested ballots, with the Court clarifying that the provision's nullity sanction attaches only when the two-person handwriting existed before the ballot was cast, not when tampering occurred after deposit.
• Section 5, Rule 64, Rules of Court — Provides that findings of fact of the COMELEC supported by substantial evidence are final and non-reviewable. The provision was applied to bar re-examination of the COMELEC's factual findings on ballot appreciation.

Reynato S. Puno (Chief Justice), Leonardo A. Quisumbing, Consuelo Ynares-Santiago, Angelina Sandoval-Gutierrez, Antonio T. Carpio, Ma. Alicia Austria-Martinez, Renato C. Corona, Conchita Carpio Morales, Romeo J. Callejo, Sr., Adolfo S. Azcuna, Minita V. Chico-Nazario, Cancio C. Garcia, Presbitero J. Velasco, Jr., Antonio Eduardo B. Nachura. No separate concurring opinions were noted.