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382 Phil. 75

EN BANC

[ G.R. No. 133509, February 09, 2000 ]

AQUILINO Q. PIMENTEL, JR., PETITIONER, VS. COMMISSION ON ELECTIONS, LIGAYA SALAYON, ANTONIO LLORENTE, AND REYNALDO SAN JUAN, RESPONDENTS.

D E C I S I O N

DE LEON, JR., J.:

Before Us is a petition for certiorari under Rule 65 seeking the invalidation of the Resolutions, dated January 8, 1998[1] and March 10, 1998,[2] issued by public respondent Commission on Elections (COMELEC) dismissing, for lack of probable cause, petitioner Aquilino Pimentel’s complaint[3] against private respondents Attys. Ligaya Salayon and Antonio Llorente, Chairman and Vice-Chairman, respectively, of the City Board of Canvassers for Pasig City, and Reynaldo San Juan, Campaign Manager of senatorial candidate Juan Ponce Enrile, for decreasing petitioner’s votes in the Statement of Votes (SoVs) per precinct and in the City Certificate of Canvass (CoC)[4] for Pasig City.

The following facts are not in dispute:

On May 8, 1995, petitioner ran in the national elections as a candidate for senator. Among others, Anna Dominique M. Coseteng, Juan Ponce Enrile, Marcelo B. Fernan, Gregorio Honasan, Ramon V. Mitra, and Rodolfo G. Biazon also ran as senatorial candidates.

Based on the election returns from all the precincts in Pasig City, the total votes[5] garnered by petitioner and the other abovementioned candidates are as follows:
Biazon86,068 
Coseteng66,498 
Enrile54,396 
Fernan69,910 
Honasan60,974 
Mitra55,823 
Pimentel72,377 
Said election returns were turned over to the City Board of Canvassers of Pasig City for canvassing.

The Certificate of Canvass (CoC) for Pasig City showed the same aforementioned candidates to have each garnered a different number of votes, viz.:
Biazon83,731 
Coseteng54,126 
Enrile91,798 
Fernan69,712 
Honasan62,159 
Mitra56,097 
Pimentel68,040 
Said CoC was certified as to the correctness of the entries made therein, by private respondents Salayon and Llorente who signed the same[6] and affixed their thumbmarks[7] thereto.

The same private respondents, in their capacity as Chairman and Vice-Chairman of said board, prepared the Statement of Votes (SoVs) for every precinct in Pasig City. Likewise, they certified as to the correctness of the entries made in the SoVs by signing the same and affixing their thumbmarks thereto.

When totalled, the votes reflected in said SoVs as having been garnered by the same candidates above, add to a yet different result, viz.:
Biazon87,214 
Coseteng67,573 
Enrile90,161 
Fernan72,031 
Honasan62,077 
Mitra56,737 
Pimentel67,936 
In sum, the total votes garnered by said candidates as recorded in the election returns, the CoC, and the SoVs for Pasig City, are as follows:
Candidates
Election Returns
Certificate of Canvass
Statement of Votes
 
     
Biazon
86,068
83,731
87,214
 
Coseteng
66,498
54,126
67,573
 
Enrile
54,396
91,798
90,161
 
Fernan
69,910
69,712
72,031
 
Honasan
60,974
62,159
62,077
 
Mitra
55,823
56,097
56,737
 
Pimentel
72,377
68,040
67,936
 
Based on the election returns, the following increase or decrease in the total number of votes garnered by said candidates is evident:
Candidates
Election Returns
Certificate of Canvass
Increase/ Decrease
Statement of Votes
Increase/ Decrease
 
Biazon
86,068
83,731
-2,337
87,214
+1,146
Coseteng
66,498
54,126
-12,372
67,573
1,075
Enrile
54,396
91,798
+37,402
90,161
+35,765
Fernan
69,910
69,712
-198
72,031
+2,121
Honasan
60,974
62,159
+1,185
62,077
+1,103
Mitra
55,823
56,097
+274
56,737
+914
Pimentel
72,377
68,040
-4,337
67,936
-4,441
Significantly, the total number of votes for senatorial candidate Enrile showed a substantial increase of 35,765 while that for petitioner showed a substantial decrease of 4,337 in the CoC and 4,441 in the SoVs. The same pattern was revealed in the way the number of Enrile votes per precinct in some 101 precincts in Pasig City exceeded the total number of voters who actually voted in the May 8, 1995 elections. Only 9,031 voters actually voted, as recorded in the SoVs of said precincts, but the Enrile votes totalled 11,255, broken down as follows:
SOV Precinct Number
Precinct Number
Number Who Voted
Enrile votes appearing in SOV
14336
401
100
115
14336
403-A
74
90
14336
402-A
81
90
14336
400
87
98
14338
273-A
11
15
14338
268-B-1
7
15
14340
56
114
120
14340
46
136
150
14340
503-A-1
70
96
14340
391-B
80
101
14342
311-A
105
140
14342
299
107
122
14342
296
107
170
14342
294-B
115
183
14342
339-A
59
142
14342
351-A
82
142
14384
290-A-1
33
40
14384
495-A
82
98
14384
290-D-1
84
95
14384
385-A-1
86
92
14384
293
98
99
14424
324-A
116
147
14424
323-A
121
140
14424
326-A
90
91
14426
114
104
127
14426
130
107
145
14426
125
108
149
14426
442-B
108
151
14426
129-A
115
155
14426
131-A
120
139
14426
440-A
122
138
14426
101-A
141
144
14426
137
144
145
14426
123
146
152
14428
46-A-D-1
28
88
14428
493-A
103
119
14428
457
121
125
14428
384-A
65
76
14428
286
68
71
14428
378-A
72
79
14428
288-A-D-1
92
105
14428
291-B
97
190
14430
191-A-1
27
91
14430
273-B-1
103
110
14430
223
105
111
14430
270
108
110
14430
267
11
20
14430
264-A
119
120
14430
263
67
70
14430
221-A
84
95
14430
224-A
89
94
14430
273-A-D-1
94
102
14430
271
96
100
22793
432-A
67
84
22831
495-A-1
113
125
22833
50-A
121
124
22835
465-B
105
125
22835
465
109
132
22835
452-B
115
121
22835
382-B
84
101
22835
471-A-1
91
99
22841
397-A
165
180
22841
350-A
97
125
22841
466-A
160
165
22843
290-A
62
80
22845
379-A-D-1
42
120
22845
380-A-1
110
118
22845
292-A-1
120
128
22845
384
43
55
22845
288-D-1
45
90
22845
287-B
64
69
22845
381-D-1
69
92
22845
382-A
75
85
22845
492-A
77
134
22845
286-B
78
90
22845
378-A
84
140
22845
382-A-1
90
98
22845
377
93
98
22911
63-A-D-1
160
165
22911
367
67
111
22911
372
70
101
22911
356-A
84
98
22911
499
88
120
22948
161-A
50
89
22948
155
51
95
22948
158
59
89
22948
522
76
125
22948
167
91
127
22949
21-A-1
80
95
22949
5
96
105
5685
300
114
12
5685
320-A
69
126
5685
372-A-D-1
72
115
5685
373-A
77
99
5693
327
114
156
5693
325
114
127
5694
357
69
123
5694
360
75
133
5694
294-A
82
83
5694
341-A
89
129
5694
330-A
96
142
------------
------------
Total
9,031
11,255
On September 17, 1996, citing the above discrepancies, petitioner filed with the COMELEC, a Complaint-Affidavit charging private respondents with violation of Section 27 (b) of Republic Act (R.A.) No. 6646, otherwise known as the Electoral Reforms Law of 1987. Petitioner therein alleged, thus:
"x x x

"3. A comparison of the COMELEC’S copy of the election returns for the various precincts in Pasig City and the SoVs per precinct for Pasig City reveals that the votes for senatorial candidates Enrile, Coseteng, Honasan, Fernan, Mitra and Biazon, among others, were illegally increased, while my votes were reduced x x x.

"x x x

"4. A perusal of the x x x SoVs shows that padded votes were written in the spaces corresponding to certain precincts regardless of the actual votes reflected in the election return concerned;

"x x x

"In addition, Enrile’s votes in 101 precincts exceeded the total number of voters who actually voted in the May 8, 1995 elections in the said precincts xxx;

"7. These illegal acts of padding the votes of the senatorial candidates were willfully committed as clearly evidenced by the magnitude of the totals padded in 575 precincts out of a total of 1,263 as appearing in the SoVs, which in the case of Enrile increased by 35,903 more votes than what he had actually received. By no means can these illegal acts be attributed to mere random ‘clerical errors’ or due to fatigue;

"8. In fact, the existence of a conspiracy to pad the votes of various senatorial candidates, particularly that of Enrile, is shown, among other things, by the following:
"a) On May 20, 1995, during the national canvassing at the PICC, a letter was sent by one of my staff memebers to x x x Pasig City Treasurer Victor B. Endriga, with the endorsement of Dir. Mejorada of the Comelec, NCR, requesting for certified copies of the Treasurer’s copy of the SoVs;

"x x x

"b) Later we learned that the letter was forwarded from the office of x x x Pasig City Treasurer Endriga to respondent Dr. Reynaldo R. San Juan, Campaign Manager of senatorial candidate Enrile of the Justice, Peace and Equality Movement with the acronym JPE (for Juan Ponce Enrile), whose office is located at the JAKA I Building, then national campaign headquarters of Enrile.

"c) Respondent Dr. Reynaldo San Juan in fact wrote a note dated May 31, 1995, to Atty. Armando M. Marcelo, a lawyer of Senator Enrile, which reads:

"May 31, 1995

Dear Atty. Marcelo,

Please take care of Mr. Sean Olaer’s problem with the office of Sen. Nene Pimentel.

Signed

"x x x
"The import of the message written on the JPE stationary and the fact that x x x Endriga furnished our letter to the campaign manager of Enrile may show the existence of a conspiracy to pad the votes of Enrile as well as to alter the votes of other candidates;

"9. The padding of the votes in such magnitude could not have been done without the indispensable cooperation of all the respondents – the Board members, who certified the correctness of the entries made x x x therein and by other persons including x x x Endriga and San Juan."[8]
The complaint was docketed as E.O. 96-1132. All private respondents filed their respective counter-affidavits denying any knowledge of or participation in the recording of vote totals in the CoC and the SoVs that did not match those appearing in the election returns.

On January 8, 1998, the COMELEC promulgated a Resolution dismissing the complaint in this wise:
"RESOLVED:

"1. To dismiss the complaint of Mr. Aquilino Q. Pimentel, Jr., against respondents Ligaya P. Salayon, Antonio Llorente, Victor Endriga, and Reynaldo San Juan for insufficiency of evidence to establish a probable cause;

"2. To dismiss the subject complaint against Ceferino Adamos for being moot and academic by reason of his death and for lack of probable cause; and

"3. To give stern warning to Ligaya P. Salayon, Election Officer, Pasig City, and Over-All Chairman of the City Board of Canvassers of Pasig City in the 1995 elections that repetition of the same negligent act in any election exercise will be dealt with severely."[9]
On February 4, 1998, petitioner filed a motion for reconsideration of the foregoing resolution. However, in Minute Resolution No. 98-0819 dated March 10, 1998, the COMELEC denied said motion.

Hence this recourse to Us via the special civil action of certiorari.

Certiorari lies.

First. Private respondents Salayon and Llorente, in their respective counter-affidavits, did not dispute the conflicting figures reflected in the election returns, the CoC, and the SoVs and instead explained that the discrepancy or error was the result of an honest mistake or oversight due to fatigue and that they only based the entries that they made in the CoC, in turn, on the entries made by the subcommittees in the SoVs.[10]

There is a limit, We believe, to what can be construed as an honest mistake or oversight due to fatigue, in the performance of official duty. The sheer magnitude of the error, not only in the total number of votes garnered by the aforementioned candidates as reflected in the CoC and the SoVs, which did not tally with that reflected in the election returns, but also in the total number of votes credited for senatorial candidate Enrile which exceeded the total number of voters who actually voted in those precincts during the May 8, 1995 elections, renders the defense of honest mistake or oversight due to fatigue, as incredible and simply unacceptable.

At any rate, We already ruled in Pimentel, Jr. v. Commission on Elections[11] that the merit of defenses such as honest mistake, simple error, good faith, and the mere performance of ministerial duties, as interposed by persons charged with the election offense of tampering, increasing or decreasing of votes received by a candidate in any election, are best ventilated in the trial proper than at the preliminary investigation.
Second. Section 27 (b) of R.A. No. 6646 which reads, viz.:

"x x x [T]he following shall be guilty of an election offense:

x x x

(b) Any member of the board of election inspectors or board of canvassers who tampers, increases or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes,"
penalizes two (2) acts: first, the tampering, increasing, or decreasing of votes received by a candidate in any election; and second, the refusal, after proper verification and hearing to credit the correct votes or deduct such tampered votes.[12] The first obtains in this case.

Petitioner categorically charged private respondents Salayon and Llorente with "illegal acts of padding the votes of the senatorial candidates"[13] amounting to "violations of the Omnibus Election Code, as amended and Sec. 27 of R.A. 6646."[14] They never denied that the total number of votes for senatorial candidate Enrile as appearing in the CoC and SoVs is significantly and considerably higher by 37,402 and 35,765, respectively, than that appearing in the election returns, while the total number of votes for petitioner was substantially decreased by as much as 4,441.

These circumstances, in themselves, constitute probable cause that justifies the belief that more likely than not, the election offense was committed and was committed by private respondents Salayon and Llorente. Probable cause is based neither on clear and convincing evidence of guilt nor evidence establishing absolute certainty of guilt.[15] It is merely based on opinion and reasonable belief, and so it is enough that there exists such state of facts as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so.[16] Considering that private respondents Salayon and Llorente, in invoking the defenses of honest mistake, oversight due to fatigue, and performance of ministerial duties, virtually admitted the existence of the discrepancies in the total number of votes garnered by petitioner and other senatorial candidates, which discrepancies by no stretch of the imagination could be dismissed as negligible or inconsequential, there is not merely a strong suspicion that they actually committed the election offense with which they are charged. The burden of proof appears to have shifted to them to prove that the said discrepancies cannot be considered illegal and criminal.

However, We entertain serious reservation as to the existence of probable cause to indict private respondent San Juan. The only evidence against him is a letter which he wrote and signed on a sheet of the official stationery of the Justice, Peace and Equality Movement which conducted the campaign for senatorial candidate Enrile for the May 1995 elections. The letter reads:   
"May 31-95

Dear Atty. Marcelo,

Please take care of Mr. Sean Olaer’s problem with the office of Sen. Nene Pimentel.

(Sgd.) Reynaldo R. San Juan"
Significantly, the letter is dated May 31, 1995. Whatever private respondent San Juan meant by asking Atty. Marcelo[17] to "take care of Mr. Sean Olaer’s problem with the office of Sen. Nene Pimentel" is not clear. The alleged conspiracy that this letter may, at most, imply, is that private respondent San Juan, Atty. Marcelo and their connections at the COMELEC would be "taking care" of the problem of Olaer regarding acquisition of carbon or certified photocopies of statement of votes per precinct.[18] If at all, the suspicion this letter might have engendered could only be considered a bare,[19] not strong[20] suspicion which is not a sufficient basis for a finding of probable cause as against respondent San Juan.

WHEREFORE, the instant petition is granted. Respondent COMELEC’s Minute Resolution No. 98-0047 dated January 8, 1998 dismissing the petitioner’s complaint, docketed therein as E.O. No. 96-1132, and Resolution No. 98-0819 dated March 10, 1998 denying petitioner’s motion for reconsideration, are hereby ANNULLED and SET ASIDE.

Respondent COMELEC is hereby ordered to file forthwith with the proper Regional Trial Court the necessary criminal information for violation of Section 27(b) of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, against private respondents Ligaya Salayon and Antonio Llorente.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.
Melo, Puno, and Vitug, JJ., in the result.
Pardo, J., no part in the deliberations. Was COMELEC Chairman at the time.


[1] Annex "A" of the Petition dated May 8, 1998, Rollo, pp. 28-34. The Resolution was approved for release by Chairman Bernardo P. Pardo and Commissioners Remedios A. Salazar-Fernando, Manolo B. Gorospe, Julio F. Desamito, Teresita Dy-Liacco Flores and Japal M. Guiani.

[2] Annex "B", supra, id. p. 35. The Resolution was approved for release by Chairman Bernardo P. Pardo and Commissioners Manolo B. Gorospe, Julio F. Desamito, Teresita Dy-Liacco Flores, Japal M. Guiani, Evalyn I. Fetalino and Amado M. Calderon.

[3] Docketed as E.O. Case No. 96-1132.

[4] Annex "C", supra, id., p. 36.

[5] Complaint-Affidavit of petitioner dated September 16, 1996 marked as Annex "E" of the Petition, supra, Rollo, pp. 41-47. The election returns which listed the total votes were attached to said complaint as annexes copies of which, however, do not appear in the Rollo. In any case, respondents did not dispute these figures.

[6] Certificate of Canvass for Pasig City dated May 11, 1995, p. 2, Rollo, p. 37.

[7] Ibid.

[8] Pls. see note no. 5.

[9] Excerpt from the Minutes of the Regular En Banc Meeting of the Commission on Elections Held on January 8, 1998 marked as Annex "A" of the Petition supra, pp. 6-7, Rollo, pp. 33-34.

[10] Par. 17 of the Counter-Affidavit dated October 5, 1996 of private respondent Ligaya P. Salayon, Rollo, p. 53; Par. 26 of the Counter-Affidavit dated December 5, 1996 of private respondent Antonio M. Llorente, Rollo, p. 65.

[11] 289 SCRA 586, 598, 600 (1998)

[12] Id., p. 598.

[13] Par. 7 of the Affidavit-Complaint dated September 16, 1996 of petitioner, Rollo, p. 45.

[14] Par. 1 of the Affidavit-Complaint, supra, id., p. 41.

[15] Pimentel, Jr. v. Commission on Elections, 289 SCRA 586, 601 (1998)

[16] Pilapil v. Sandiganbayan, 221 SCRA 349, 360 (1993); Olivarez v. Sandiganbayan, 248 SCRA 700, 712 (1995)

[17] Atty. Armando M. Marcelo, one of the law partners at what used to be the Ponce Enrile Cayetano Reyes and Manalastas Law Offices.

[18] Pls. see par. 8 (a) of the quoted portion of petitioner’s Affidavit-Complaint.

[19] Webb v. De Leon, 247 SCRA 652, 676 (1995)

[20] Pilapil v. Sandiganbayan, supra; Olivarez v. Sandiganbayan, supra.

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