G.R. No. 122013 March 26, 1997
JOSE C. RAMIREZ, petitioner,
vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF GIPORLOS, EASTERN SAMAR and ALFREDO I. GO, respondents.
MENDOZA, J.:
Petitioner
Jose C. Ramirez and private respondent Alfredo I. Go were candidates
for vice mayor of Giporlos, Eastern Samar in the election of May 8,
1995. Petitioner was proclaimed winner by the Municipal Board of
Canvassers (MBC) on the basis of results showing that he obtained 1,367
votes against private respondent's 1,235 votes. 1
On
May 16, 1995, private respondent filed in the COMELEC a petition for
the correction of what he claimed was manifest error in the Statement of
Votes (SPC No. 95-198). He alleged that, based on the entries in the
Statement of Votes, he obtained 1,515 votes as against petitioner's
1,367 votes but that because of error in addition, he was credited with
1,235 votes as shown in the following recomputation: 2
8-A 23 43
9 23 10
8 37 49
2-A 31 48
12 50 42
12-A 65 29
7-A 36 73
20 7 19
3 88 56
1-A 54 67
13-A 43 47
18 39 12
14 19 65
4 27 37
5-A 43 67
13 37 42
2 73 79
15 49 49
11 58 18
11-A 66 32
6 115 98
1 130 52
17 54 15
7 86 67
10 60 13
5 50 55
19 41 61
21 59 46
16 52 76
——————— ——— ———
Total 29 Precincts 1,235 1,367
(Should be 1,515)
In his Answer with Counter-Protest, 3
petitioner Jose C. Ramirez disputed private respondent's claim. He said
that instead of the total of the votes for private respondent Alfredo
Go, it was actually the entries relating to the number of votes credited
to him in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10 which were
erroneously reflected in the Statement of Votes. According to
petitioner, the entries in the Statement of Votes actually referred to
the number of votes obtained by Rodito Fabillar, a mayoralty candidate,
and not to the votes obtained by private respondent. Petitioner alleged
that, as shown in the Certificate of Votes prepared by the Board of
Election Inspectors, the votes cast for Go in the precincts in question
were as follows:
of Votes of Votes
11-A 66 18
6 115 65
1 130 61
17 54 48
7 86 37
10 60 28
The
addition of the number of votes (reflected in the Certificate of Votes)
to the number of votes from other precincts confirms the MBC's
certificate that the total number of votes cast was actually 1,367 for
petitioner and 1,235 for private respondent.
On August 1, 1995, the COMELEC en banc issued
its first questioned resolution, directing the MBC to reconvene and
recompute the votes in the Statement of Votes and proclaim the winning
candidate for vice mayor of Giporlos, Eastern Samar accordingly. 4
Petitioner
Jose C. Ramirez and public respondent Municipal Board of Canvassers
filed separate "motions for clarification." On September 26, 1995, the
COMELEC en banc issued its second questioned resolution,
reiterating its earlier ruling. It rejected the MBC's recommendation to
resort to election returns: 5
The
Municipal Board of Canvassers is reminded that pursuant to Section 231
of the Omnibus Election Code, it is the Statement of Votes, duly
prepared, accomplished during the canvass proceedings, and certified
true and correct by said Board which supports and form (sic) the
basis of the Certificate of Canvass and Proclamation of winning
candidates. In fact and in deed, the Municipal Board of
Canvassers/Movant had submitted to the Commission, attached to and
forming part of the Certificate of Canvass and Proclamation a Statement
of Votes without any notice of any discrepancy or infirmity therein. To
claim now that the proclamation was not based on said Statement of Votes
but on the Certificate of Votes because the entries in the Statement of
Votes are erroneous is too late a move, considering that by the Board's
act of submitting said Statement of Votes as attachment to the
Certificate of Proclamation and Canvass, it had rendered regularity and
authenticity thereto.
Hence this petition for certiorari and mandamus seeking
the annulment of the two resolutions, dated August 1, 1995 and
September 26, 1995, of the Commission on Elections, and the
reinstatement instead of the May 10, 1995 proclamation of petitioner
Jose C. Ramirez as the duly elected vice mayor of Giporlos, Eastern
Samar. Petitioner contends that (1) the COMELEC acted without
jurisdiction over SPC No. 95-198 because the case was resolved by it
without having been first acted upon by any of its divisions, and (2)
the MBC had already made motu proprio a correction of manifest
errors in the Statement of Votes in its certification dated May 22,
1995, showing the actual number of votes garnered by the candidates and
it was a grave abuse of its discretion for the COMELEC to order a
recomputation of votes based on the allegedly uncorrected Statement of
Votes.
With respect to the first ground of the petition, Art. IX, §3 of the Constitution provides:
§3. The Commission on Elections may sit en banc or
in two divisions, and shall promulgate its rules of procedure in order
to expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall
be decided by the Comelec en banc. (Emphasis added)
Although in Ong, Jr. v. COMELEC 6
it was said that "By now it is settled that election cases which
include pre-proclamation controversies must first be heard and decided
by a division of the Commission" 7
— and a petition for correction of manifest error in the Statement of
Votes, like SPC No. 95-198 is a pre-proclamation controversy — in none
of the cases 8
cited to support this proposition was the issue the correction of a
manifest error in the Statement of Votes under 231 of the Omnibus
Election Code (B.P. Blg. 881) or §15 of R.A. No. 7166. On the other
hand, Rule 27, §5 of the 1993 Rules of the COMELEC expressly provides
that pre-proclamation controversies involving, inter alia, manifest errors in the tabulation or tallying of the results may be filed directly with the COMELEC en banc, thus
§5. Pre-proclamation Controversies Which May Be Filed Directly With the Commission. — (a) The following pre-proclamation controversies may be filed directly with the Commission:
xxx xxx xxx
2) When the issue involves the correction of manifest
errors in the tabulation or tallying of the results during the
canvassing as where (1) a copy of the election returns or certificate of
canvass was tabulated more than once, (2) two or more copies of the
election returns of one precinct, or two or more copies of certificate
of canvass were tabulated separately, (3) there had been a mistake in
the copying of the figures into the statement of votes or into the
certificate of canvass, or (4) so-called returns from non-existent
precincts were included in the canvass, and such errors could not have
been discovered during the canvassing despite the exercise of due
diligence and proclamation of the winning candidates had already been
made.
xxx xxx xxx
(e) The petition shall be heard and decided by the Commission en banc.
Accordingly in Castromayor v. Commission on Elections, 9 and Mentang v. Commission on Elections, 10 this Court approved the assumption of jurisdiction by the COMELEC en banc over petitions for correction of manifest error directly filed with it. Our decision today in Torres v. COMELEC 11 again gives imprimatur to the exercise by the COMELEC en banc of the power to decide petition for correction of manifest error.
In any event, petitioner is estopped from raising the issue of jurisdiction of the COMELEC en banc. Not only did he participate in the proceedings below but he also sought affirmative relief from the COMELEC en banc by
filing a Counter-Protest in which he asked that "entr[ies] in the
statement of votes for Precinct Nos. 11, 11-A, 6, 1, 17, 7 and 10, be
properly corrected for the petitioner, to reflect the correct mandate of
the electorate of Giporlos, Eastern Samar." 12
It is certainly not right for a party taking part in proceedings and
submitting his case for decision to attack the decision later for lack
of jurisdiction of the tribunal because the decision turns out to be
adverse to him. 13
Petitioner next contends that motu proprio the MBC already made a correction of the errors in the Statement of Votes in its certification dated May 22, 1995, which reads: 14
C E R T I F I C A T I O N
To whom It May Concern:
This is to certify that the hereunder candidates for
Municipal Vice Mayor of Giporlos, Eastern Samar during the May 8, 1995
National and Local Elections got the number of Votes on the precincts
listed hereunder in tabulation form based in our Canvassing of Votes per
Precincts.
candidate 11 11-A 6 1 17 7 10
GO, Alfredo I. 32 18 65 61 48 37 28
RAMIREZ, Jose C. 18 32 98 52 15 67 13
This certification is issued upon request of the interested party for whatever legal purpose this may serve him.
May 22, 1995
To
begin with, the corrections should be made either by inserting
corrections in the Statement of Votes which was originally prepared and
submitted by the MBC, or by preparing an entirely new Statement of Votes
incorporating therein the corrections. 15
The certification issued by the MBC is thus not the proper way to
correct manifest errors in the Statement of Votes. More importantly, the
corrections should be based on the election returns but here the
corrections appear to have been made by the MBC on the bases of the
Certificates of Votes issued. Thus, in its motion for clarification, the
MBC said:
a.
The proclamation of Jose C. Ramirez was based on the results of the
certificate of canvass and tally of votes garnered by both petitioner
and private respondent which showed Jose C. Ramirez garnering 1,367 as
against 1,235 by Alfredo I. Go, or a winning margin of 132 in favor of
Jose C. Ramirez;
b. Based on the certificate of votes in Precinct Nos.
11, 11-A, 6, 1, 17, 7, and 10, Alfredo I. Go garnered only 32, 18, 65,
61, 48, 37 and 28, respectively, and the votes ascribed to the latter
shown in the statement of votes are clear typographical errors and were
erroneously copied from the votes garnered by mayoral candidate Rodito
P. Fabillar from the same seven (7) precincts in Giporlos;
c. Because of typographical errors in the statement of votes, Alfredo I. Go balooned (sic)
by 280 votes, such that instead of losing by 132 votes to Jose C.
Ramirez, Alfredo I. Go acquired an unwarranted margin of 148 votes;
d. The recomputation based on the statement of votes
alone without including the correct votes on the Election Returns on the
Seven (7) precincts aforesaid will frustrate the will of the people who
unquestionably voted for Jose C. Ramirez by a clear majority of 132
votes;
e. In the preparation of the certificate of canvass
and proclamation, only the certificate of votes of each candidate were
considered by reason of the fact it was prepared and signed only on May
11, 1995 or one after (sic) the proclamation of the winning municipal candidates on May 10, 1995.
Certificates
of Votes are issued by Boards of Election Inspectors (BEI) to watchers,
pursuant to §215 of the Omnibus Election Code (OEC). While such
certificates are useful for showing tampering, alteration, falsification
or any other irregularity in the preparation of election returns, 16
there is no reason for their use in this case since the integrity of
the election returns is not in question. On the other hand, in the
canvass of votes, the MBC is directed to use the election returns. 17
Accordingly, in revising the Statement of Votes supporting the
Certificate of Canvass, the MBC should have used the election returns
from the precincts in question although in fairness to the MBC, it
proposed the use of election returns but the COMELEC en banc rejected
the proposal. The Statement of Votes is a tabulation per precinct of
votes garnered by the candidates as reflected in the election returns.
The
Statement of Votes is a vital component of the electoral process. It
supports the Certificate of Canvass and is the basis for proclamation. 18
But in this case the Statement of Votes was not even prepared until
after the proclamation of the winning candidate. This is contrary to the
Omnibus Election Code, §231 of which provides in part:
xxx xxx xxx
The respective board of canvassers shall prepare a
certificate of canvass duly signed and affixed with the imprint of the
thumb of the right hand of each member, supported by a statement of
votes received by each candidate in each polling place and, on the basis
thereof, shall proclaim as elected the candidates who obtained the
highest number of votes cast in the province, city, municipality or
barangay.
Indeed,
it appears from the Comment of the MBC that the MBC prepared its
Certificate of Canvass simply on the basis of improvised tally sheets
and that it was only after the termination of the canvass, the
proclamation of petitioner Jose C. Ramirez, and the accomplishment of
the Certificate of Canvass of Votes and Proclamation, that its clerk,
Rosalia Abenojar, prepared the Statement of Votes (C.E. Form No. 20-A).
In a sworn report, Ms. Abenojar herself stated that she was tired and
drowsy at the time she prepared the Statement of Votes for the mayoralty
and vice mayoralty positions. Although this circumstance may support
petitioner's claim that the number of votes credited to private
respondent Alfredo I. Go are actually those cast in Precinct Nos. 11,
11-A, 6, 1, 17, 7, and 10 for mayoralty candidate Rodito Fabillar, it is
equally possible that Go and Fabillar obtained the same number of votes
in those precincts. That the clerk who prepared the Statement of Votes
was tired and drowsy does not necessarily mean the entries she made were
erroneous. But what is clear is that the Statement of Votes was not
prepared with the care required by its importance. Accordingly, as the
Solicitor General states, what the COMELEC should have ordered the MBC
to do was not merely to recompute the number of votes for the parties,
but to revise the Statement of Votes, using the election returns for
this purpose. 19 As this Court ruled in Villaroya v. Commission on Elections: 20
[T]he
COMELEC has ample power to see to it that the elections are held in
clean and orderly manner and it may decide all questions affecting the
elections and has original jurisdiction on all matters relating to
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 to insure that the true will of the
people is known. Such a clerical error in the statement of votes can be
ordered corrected by the COMELEC.(Emphasis added)
Petitioner's
final contention that in any event SPC No. 95-198 must be considered
rendered moot and academic by reason of his proclamation and assumption
of office is untenable. The short answer to this is that petitioner's
proclamation was null and void and therefore the COMELEC was not barred
from inquiring into its nullity. 21
WHEREFORE,
the petition is partially GRANTED by annulling the resolutions dated
August 1, 1995 and September 26, 1995 of the Commission on Elections.
The COMELEC is instead DIRECTED to reconvene the Municipal Board of
Canvassers or, if this is not feasible, to constitute a new Municipal
Board of Canvassers in Giporlos, Eastern Samar and to order it to revise
with deliberate speed the Statement of Votes on the basis of the
election returns from all precincts of the Municipality of Giporlos and thereafter proclaim the winning candidate on the basis thereof.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno and Vitug, JJ., concur.
Footnotes2 Id., pp. 46-47.
3 Id., pp. 50-54.
4 Id., p. 59.
5 Id., p. 73.
6 216 SCRA 806 (1992).
7 Id., at 812.
8 Pascua v. COMELEC, G.R. No. 105913, November 16, 1992, En Banc Resolution; Sarmiento v. COMELEC, G.R. No. 105628, August 6, 1992, Typoco v. COMELEC, G.R. No. 105730, August 6, 1992; Genova Jr. v. COMELEC, G.R. No. 105771, August 6, 1992; Manliclic v. COMELEC, G.R. No. 105797, August 6, 1992; Sinsuat v. COMELEC, G.R. No. 105919, August 6, 1992.
9 250 SCRA 298 (1995).
10 229 SCRA 666 (1993).
11 G.R. No. 121031, March 26, 1997.
12 Rollo, p. 52.
13 See Pangarungan v. COMELEC, 216 SCRA 522 (1992); Tijam v. Sibonghanoy, 23 SCRA 29 (1968); Ilocos Sur Electric Cooperative, Inc. v. NLRC, 241 SCRA 36 (1995).
14 Rollo, p. 76.
15 Bince, Jr. v. COMELEC, 218 SCRA 782,795 (1993).
16 R.A. No. 6646, §17.
17 OEC, §231(1); COMELEC Resolution No. 2756, §38.
18 OEC, §231; Duremdes v. Commission on Elections, 178 SCRA 746, 754 (1989).
19 Rollo, p. 162.
20 155 SCRA 633, 643-644 (1987).
21 Duremdes v. Commission on Elections, 178 SCRA at 757 (1989), citing Aguam v. COMELEC, 23 SCRA 833 (1968).
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