384 Phil. 454
PUNO, J.:
In this special civil action for certiorari, petitioner Arthur V. Velayo seeks to set aside the Resolution issued by respondent Commission on Elections dated October 6, 1998 annulling his proclamation, and directing the Board of Canvassers of Gapan, Nueva Ecija to convene immediately, exclude Precincts 44A, 44A2, 50A and 50A1, and immediately proclaim the winning candidate for Mayor of Gapan, Nueva Ecija.
"WHEREFORE, it is most respectfully prayed that after due proceedings, judgment be rendered, as follows:In the morning of May 19, 1998, Natividad filed a third case, SPC No. 98-073, entitled "In the matter of the appeal from the written rulings dated 13, 14 and 15 May 1998 of the Municipal Board of Canvassers for Gapan, Nueva Ecija, on contested Election Returns No. 4900678 of Precinct No. 9A3/9A4 dated 13 May 1998; contested Returns Nos. 4900775 of Precinct No. 43A2; 4900776 of Precinct No. 43A3; 4900828 of Precinct No. 61A2; 4900780 of Precinct No. 45A/45A1; 4900789 of Precinct No. 99A; 4900774 of Precinct No. 43A1; 4900792 of Precinct Nos. 50A and 50A2; 4900844 of Precinct No. 68A; 4900779 of Precinct No. 44A2; and 4900811 of Precinct No. 98A2 all dated 14 May 1998 and contested Election Returns No. 4900777 of Precinct No. 56A2."[11] Later in the day, he submitted documentary evidence in support of his appeal.[12] Again, neither the Board nor the petitioner was named respondent in the appeal. They were not furnished copies of the petition.
1. Declaring as null and void all acts and proceedings had by the Municipal Board of Canvassers from 13 May 1998 when the same have been challenged by the petitioner as illegal up to its last act thereof particularly the canvass of election returns for the local elections only;
2. Ordering the substitution/replacement of Ms. Linda Sandoval and Mr. Eduardo Pancho as chairperson and vice chairman of the Municipal Board of Canvassers for Gapan, Nueva Ecija, and once substituted/replaced, directing the substituted members of the Board to proceed with dispatch in the canvass of the election returns;
3. Suspending the proclamation of the winning candidates until after a faithful and impartial canvass of the returns shall have been had by the substituted members of the Board, and the pre-proclamation controversies bearing on the questioned matter resolved by this Honorable Commission; and
4. Annuling the proclamation, if any shall have been illegally done by the Board on the basis of the sham, pre-determined and manipulated canvass of the returns as complained of herein.
Petitioner prays for other relief just and proper in the premises."
"In view of the proclamation by the Municipal Board of Canvassers of Gapan, Nueva Ecija, of all the winning candidates for the municipal positions of said municipality on May 17, 1998, as evidenced by duly signed Certificate of Canvass of Votes and Proclamation of the Winning Candidates for Municipal Offices [C.E. form No. 25] with Serial No. 03490337, this Commission [Second Division] RESOLVED, as it hereby RESOLVES TO DISMISS this instant petition for being MOOT AND ACADEMIC.It is alleged by the private respondent that he received a copy of the Order on June 22, 1998.
"SO ORDERED."[16]
"WHEREFORE, premises considered, the proclamation of Arthur V. Velayo is hereby ANNULLED. The Board of Canvassers of Gapan, Nueva Ecija is hereby DIRECTED to convene immediately, exclude Precincts 44A, 44A2 and 50A & 50A1[20] and immediately proclaim the winning candidate for mayor of Gapan, Nueva Ecija.In so ruling, the COMMISSION en banc held that:
"Further, they are directed to immediately inform the Commission of their action thereon.
"SO ORDERED."
"A close perusal of the above-entitled cases would show that the above objections and appeals were made strictly in accordance with law, however, the Board in defiance of Section 245 and Section 20 of Republic Act 7166, particularly sub-paragraph (i) included the assailed election returns without giving opportunity to the aggrieved party to go on appeal to the Commission.It was only then that petitioner was informed of the Resolution by telegram on October 8, 1998."Said Section 20(i) of R.A. 7166 states:"In this case, it is clear that the objected election returns will adversely affect the results of the elections.
The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections to it on appeal by the losing party. Any proclamation made in violation thereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.
"Thus, after close perusal of the above-cited objected election returns, the Commission finds that the election returns of 44A, 44A2, and 50A1/A2 should be excluded from the canvass. It is worth noting that in these precincts 44A and 44A2 petitioner Natividad got zero votes which is statistically improbable. The affidavits of the following watchers respectively to wit: Rolando C. Gamboa, Eduardo Mallare and Eduardo Surio together with the police report of Miguel S. Inductivo of the threats received by Danilo Simon, all watchers of petitioner, all in the dialect which attest to the incident wherein they were prevented and threatened from entering the polling place by four [un]identified men and they were able to witness these men threatening the teachers and telling them to tamper the election return in such a way that they will not be noticed by other people and they will have no problem.
"Watchers play a vital role in protecting the votes especially during the counting of votes in the precinct level. The fact that the watchers were prevented and in fact heard the teachers threatened to have the election returns altered makes the whole election process a mockery in these precincts as the returns are no longer reflective of the true results of the elections. It is no wonder then that in these precincts Natividad got zero votes.
"Further, since there was already an objection against the two members of the Board of Canvassers and their illegal proceedings they cannot proceed to canvass, to cite Section 244 of the Omnibus Election Code:Section 244. Contested composition or proceedings of the board. – When the composition or proceedings of the board of canvassers are contested, the board of canvassers shall, within twenty-four hours, make a ruling thereon with notice to the contestant who, if adversely affected, may appeal the matter to the Commission within five days after the ruling with proper notice to the board of canvassers. After due notice and hearing, the Commission shall decide the case within ten days from the filing thereof. During the pendency of the case, the board of canvassers shall suspend the canvass until the Commission orders the continuation or resumption thereof and citing their reasons or grounds therefor."Thus, the action of the Board in proclaiming the winning candidate for mayor in the Municipality of Gapan is illegal for violation of Section 20(a) to (i) of R.A. 7166 and Section 244 of the Omnibus Election Code."[21]
In this special civil action for certiorari, petitioner contends:In its Manifestation and Motion (in lieu of Comment), the Solicitor General agreed with the petitioner and opined that the COMELEC gravely abused its discretion when it issued the impugned resolution.[23] COMELEC filed its own Comment sustaining its resolution. So did the private respondent.
"1. The questioned Resolution (Annex "A") of October 6, 1998 is ultra vires and void ab initio because it was issued ex-parte, without notice and opportunity afforded the petitioner to be heard and therefore, violative of due process.
"2. The Comelec committed grave abuse of discretion amounting to lack of jurisdiction when it did not dismiss respondent Natividad’s Motion for Reconsideration on SPC Nos. 98-002, 98-050 and 98-073 for being filed out of time.
"3. The Comelec committed grave abuse of discretion amounting to lack of jurisdiction when it excluded the votes cast in Precincts 44A, 44A2, 50A and 50A1 as manufactured and contrary to statistical probabilities without the required notice and hearing consistent with due process.
"4. The Comelec committed grave abuse of discretion amounting to lack of jurisdiction when it annulled the proclamation of petitioner without the required notice and hearing consistent with due process.
"5. The Comelec committed grave abuse of discretion amounting to lack of jurisdiction when it did not dismiss said pre-proclamation cases for the reason that the grounds relied upon by respondent Natividad are proper grounds for election protests."
"Sec. 2. Period for Filing Motions for Reconsideration. - A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution or implementation of the decision, resolution, order or ruling."A party cannot feign ignorance of the date of promulgation of a decision or resolution because it is previously fixed and notice is served upon him in advance. Thus, Section 5, Rule 18 of the COMELEC Rules of Procedure provides:
"Sec. 5. Promulgation. - The promulgation of a decision or resolution of the Commission or a Division shall be made on a date previously fixed, of which notice shall be served in advance upon the parties or their attorneys personally or by registered mail or by telegram."SECOND. Respondent COMELEC failed to be faithful to section 3 of Rule 27 of the 1993 COMELEC Rules of Procedure which provides that "all pre-proclamation controversies shall be heard summarily after due notice x x x."[24]
"The record shows that petitioner had no participation whatsoever in all the proceedings conducted before the COMELEC. He was not furnished with a copy of any of the three (3) petitions filed by private respondent before the COMELEC (Annexes B, B-1 and B-2, Petition). This fact is admitted by private respondent himself in his Comment on the Petition dated November 12, 1998, thus:It is true that RA No. 7166 provides for summary proceedings in pre-proclamation cases and does not require a trial type hearing. Nevertheless, summary proceedings cannot be stretched to mean ex parte proceedings. Summary simply means with dispatch, with the least possible delay. It signifies that the power may be exercised without a trial in the ordinary manner prescribed by law for regular judicial proceedings. But although the proceedings are summary, the adverse party nevertheless must at the very least be notified so that he can be apprised of the nature and purpose of the proceeding.[25] In the case at bar, all the proceedings were conducted by the respondent COMELEC without the participation of the petitioner. Worse, respondent Natividad was allowed to file various motions without the knowledge of the petitioner. Plainly, these ex parte proceedings offend fundamental fairness and are null and void.In Jagunap v. Commission on Elections, 104 SCRA 204 (1981), this Honorable Court ruled that a proclamation of a winning candidate can be set aside only after due notice and hearing, viz:
- Petitioner has no legal personality to file the special civil action herein under Rule 65 of the Rules of Court because he is/was not a party to the three pre-proclamation cases, namely, SPC Nos. 98-002, 98-050 and 98-073 filed by answering respondent before public respondent Commission on Election hereafter referred to as the COMELEC.
(p. 1, Private Respondent’s Comment; emphasis ours)Upon the facts of the case, We find that the COMELEC had, indeed, gravely abused its discretion, amounting to lack of jurisdiction, in annulling the proclamation of JAEN as the elected Municipal Mayor of Leganes, Iloilo. JAEN was not furnished with a copy of any petition or motion to set aside his proclamation; nor was he notified of the hearing of such petition or motion. As a matter of fact, the records of the case do not indicate that a hearing was ever conducted by the COMELEC before it ordered the annulment of the proclamation of JAEN. This to Us is an irregularity. JAEN, who has already been proclaimed by the Municipal Board of Canvassers of Leganes, Iloilo, has the right to be notified of any proceeding to set aside his proclamation, and a hearing is necessary before the COMELEC can order the annulment of his proclamation. Section 175 of the 1978 Election Code explicitly provides that the COMELEC can order the annulment of a proclamation of a candidate-elect on any of the grounds mentioned in Sections 172, 173 and 174 thereof (defective, tampered and falsified election returns, and discrepancies in the election returns) only after due notice and hearing. Said section reads as follows:Furthermore, Section 246 of B.P. Blg. 881, otherwise known as the Omnibus Election Code of the Philippines, as amended by Section 18 of R.A. 7166, provides that pre-proclamation cases must be disposed of summarily but not ex parte, viz:Sec. 175. Suspension and annulment of proclamation. – The Commission shall be the sole judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall be final and executory. It may motu propio or upon written petition, and after due notice and hearing order the suspension of the proclamation of a candidate-elect or annul any proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173 and 174 hereof.It results that COMELEC Resolution No. 9431, dated March 1, 1980, and COMELEC Resolution No. 9456, dated May 6, 1980, which were issued without the notice and hearing, are arbitrary, and therefore, null and void. The proclamation of JAGUNAP, being based upon these void resolutions, is, consequently, of no legal effect, and should be set aside.Section 246. Summary disposition of pre-proclamation controversies. – All pre-proclamation controversies on election returns on certification of canvass shall, on the basis of the records and evidence elevated to it by the board of canvassers, be disposed of summarily by the Commission within seven (7) days from receipt thereof. Its decisions shall be executory after the lapse of seven (7) days from receipt by the losing party of the decision of the commission.A judicial proceeding, order or injunction, etc. is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only and without notice to, or contestation by any person adversely interested. An ex parte hearing is one in which the court or tribunal hears only one side of the controversy (Black’s Law Dictionary, Sixth Edition, p. 576).
x x x
In the case at bar, petitioner’s proclamation as Mayor of Gapan, Nueva Ecija by the Municipal Board of Canvassers on May 17, 1998 was not only summarily annulled by the COMELEC. It was annulled ex parte, i.e., solely on the basis of the evidence presented by private respondent, absolutely depriving petitioner an opportunity to present his rebuttal evidence. This ex parte annulment of petitioner’s proclamation is null and void for being repugnant to the due process clause of the Constitution and, should, therefore, be set aside conformably with Jagunap (supra)."
"SEC. 20. Procedure in disposition of contested election returns. (a) Any candidate, political party or coalition of political parties contesting the inclusion or exclusion in the canvass of any election returns on any of the grounds authorized under Article XX or Section 234, 235 and 236 of Article XIX of the Omnibus Election Code shall submit their oral objection to the chairman of the board of canvassers at the time the questioned return is presented for inclusion in the canvass. Such objection shall be recorded in the minutes of the canvass.Appeal from the decision of the Board of Canvassers is governed by Section 18 of RA 7166, viz.:
(b) Upon receipt of any such objection, the board of canvassers shall automatically defer the canvass of the contested returns and shall proceed to canvass the returns which are not contested by any party.
(c) Simultaneous with the oral objection, the objecting party shall also enter his objection in the form for written objections to be prescribed by the Commission. Within twenty-four (24) hours from and after the presentation of such an objection, the objecting party shall submit the evidence in support of the objection, which shall be attached to the form for written objections. Within the same period of twenty-four (24) hours after presentation of the objection, any party may file a written and verified opposition to the objection in the form also to be prescribed by the Commission, attaching thereto supporting evidence, if any. The board shall not entertain an objection or opposition unless reduced to writing in the prescribed forms.
The evidence attached to the objection or opposition submitted by the parties, shall be immediately and formally admitted into the records of the board by the chairman affixing his signature at the back of each and every page thereof.
(d) Upon receipt of the evidence, the board shall take up the contested returns, consider the written objections thereto and opposition, if any, and summarily and immediately rule thereon. The board shall enter its ruling on the prescribed form and authenticate the same by the signatures of its members.
(e) Any party adversely affected by the ruling of the board shall immediately inform the board if he intends to appeal said ruling. The board shall enter said information in the minutes of the canvass, set aside the returns and proceed to consider the other returns.
(f) After all the uncontested returns have been canvassed and the contested returns ruled upon by it, the board shall suspend the canvass. Within forty-eight (48) hours therefrom, any party adversely affected by the ruling may file with the board a written and verified notice of appeal; and within an unextendible period of five (5) days thereafter, an appeal may be taken to the Commission.
(g) Immediately upon receipt of the notice of appeal, the board shall make an appropriate report to the Commission, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report.
(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 the 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.
(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election."
"SEC. 18. Summary disposition of pre-proclamation controversies. – All pre-proclamation controversies on election returns or certificates of canvass shall, on the basis of the records and evidence elevated to it by the board of canvassers, be disposed of summarily by the Commission within seven (7) days from receipt thereof. Its decision shall be executory after the lapse of seven (7) days from receipt by the losing party of the decision of the Commission."In the case at bar, we have carefully examined the records and it does not clearly appear that the COMELEC annulled the proclamation of Velayo on the basis of the official records and evidence adduced by the parties before the Board of Canvassers. The importance of these official records and evidence cannot be overemphasized. The records contain the contested election returns, the objections of the aggrieved party, the opposition of the prevailing party, the evidence of the parties, and the rulings of the Board of Canvassers. R.A. No. 7166 explicitly provides that it is only on the basis of these official records that the COMELEC can decide the pre-proclamation controversy in a summary manner. Without the official records, the respondent COMELEC cannot validly decide a pre-proclamation controversy. There is no showing that the official records of the Board of Canvassers were forwarded to the respondent COMELEC and were used to cancel Velayo’s proclamation.
"(1) Affidavit of Isagani V. Manuel dated 18 May 1998 consisting of two pages attached hereto as Annex A and made an integral part hereof;In SPC 98-073, the new and additional evidence are the following:
(2) Affidavit of Romeo Natividad dated 20 May 1998 consisting of two (2) pages copy of which is attached hereto as Annex B and made an integral part hereof;
(3) Affidavit of Danilo Natividad dated 19 May 1998 consisting of two (2) pages copy of which is attached hereto as Annex C and made an integral part hereof;
(4) Joint affidavit of Dindo C. Alvarez and Berlin Alvarez (dated) 20 May 1998 consisting of two (2) pages copy of which is attached hereto as Annex D and made an integral part hereof;
(5) Joint affidavit of Myrna Angelina Cosio and Rachel G. Navarro dated 19 May 1998 copy of which is attached hereto as Annex E and made an integral part hereof;
(6) Joint affidavit of Lourdes M. Malaca and Adelwiso P. Malaca dated 19 May 1998 copy of which is attached hereto as Annex F and made an integral part hereof;
(7) Joint affidavit of Leovigildo Angeles and Joselito Arcilla dated 20 May 1998 copy of which is attached hereto as Annex G and made an integral part hereof;
(8) Joint affidavit of Francisco Angeles and Hilario Garcia dated 18 May 1998 copy of which is attached hereto as Annex H and made an integral part hereof;
(9) Joint affidavit of Arlene Ayroso and Jamaiza Garcia dated 20 May 1998 copy of which is attached hereto as Annex I and made an integral part hereof;
(10) Joint affidavit of Belinda Reyes and Corazon Reyes dated 20 May 1998 copy of which is attached hereto as Annex J and made an integral part hereof;
(11) Joint affidavit of Elenita Pablo and Ariel Gutierrez dated 20 May 1998 copy of which is attached hereto as Annex K and made an integral part hereof;
(12) Joint affidavit of Francisco Mauro and Bernardo Santos dated 19 May 1998 copy of which is attached hereto as Annex L and made an integral part hereof; Slxmis
(13) Joint affidavit of Lorenzo Rueda and Ceferino Sta. Maria consisting of two (2) pages copy of which is attached hereto as Annex M and made an integral part hereof;
(14) Joint affidavit of Rommel Oanes and Jonnel Robello dated 19 May 1998 copy of which is attached hereto as Annex N and made an integral part hereof;
(15) Joint affidavit of Enrico Matias and Ronald Tolentino dated 20 May 1998 copy of which is attached hereto as Annex O and made an integral part hereof;
(16) Joint affidavit of Cesar Natividad and Belinda Tinio dated 20 May 1998 copy of which is attached hereto as Annex P and made an integral part hereof;
(17) Joint affidavit of Fernando Caralde and Angelito Nepomuceno dated 18 May 1998 copy of which is attached hereto as Annex Q and made an integral part hereof;
(18) Joint affidavit of Evaristo Bunag and Donald Alvarez dated 19 May 1998 copy of which is attached hereto as Annex R and made an integral part hereof;
(19) Joint affidavit of Roberto Manipon and Gerry Fernandez dated 20 May 1998 copy of which is attached hereto as Annex S and made an integral part hereof; and
(20) Joint affidavit of Roberto dela Cruz and Leonardo Reyes dated 20 May 1998 copy of which is attached hereto as Annex T and made an integral part hereof."[26]
"(1) Election Returns No. 4900773 (Precinct No. 43A)Again, it cannot be gainsaid that petitioner was denied due process by the respondent COMELEC.
Certification by the PNP, Gapan Police Station, Gapan, Nueva Ecija, that the complaint of Danilo Simon that he was threatened as watcher of Precinct No. 43A by four (4) unidentified men as follows: `Magsilayas na kayo dito pagpapatayin ko kayo,’ was entered in the Police Blotter of Gapan Police Station on 11 May 1998 copy of which is attached hereto as Annex Y and made an integral part hereof and accompanied by the affidavit of Danilo Simon dated 14 May 1998, Annex Y-1 hereof.
Joint affidavit of Nestor Pascual and Gerry Mangahas dated 22 May 1998 copy of which is attached hereto as Annex Z and made an integral part hereof;
(2) Election Returns No. 4900774 (Precinct No. 43A1)
Joint affidavit of Perfecto San Gabriel and Rico Andres dated 22 May 1998 copy of which is attached hereto as Annex AA and made an integral part hereof;
(3) Election Returns No. 4900775 (Precinct No. 43A2)
Joint affidavit of Editha Pasco and Jose San Gabriel dated 22 May 1998 copy of which is attached hereto as Annex BB and made an integral part hereof;
(4) Election Returns No. 4900776 (Precinct No. 43A3)
Joint affidavit of Eladio Bartolome and Edgar Gatus dated 22 May 1998 copy of which is attached hereto as Annex CC and made an integral part hereof;
(5) Election Returns No. 4900777 (Precinct No. 44A)
Joint affidavit of Rolando Linsangan and Samuel Lazaro dated 22 May 1998 copy of which is attached hereto as Annex DD and made an integral part hereof;
(6) Election Returns No. 4900778 (Precinct No. 44A1)
Joint affidavit of Ramon Natividad and George Lazaro dated 22 May 1998 copy of which is attached hereto as Annex EE and made an integral part hereof;
(7) Election Returns No. 4900779 (Precinct No. 44A2)
Joint affidavit of Eduardo A. Santiago and Guillermo Gatus dated 22 May 1998 copy of which is attached hereto as Annex FF and made an integral part hereof;
(8) Election Returns No. 4900779 (Precinct No. 44A2)
Joint affidavit of Francisco delos Santos and Cesar Nanalis dated 22 May 1998 copy of which is attached hereto as Annex GG and made an integral part hereof; and
(9) Election Returns No. 4900792 (Precinct No. 50A1/50A2)
Joint affidavit of Roberto S. Delegiado and Eduardo Hernandez dated 22 May 1998 copy of which is attached hereto as Annex HH and made an integral part hereof."[27]
The Affidavits[28] of Danilo Simon read:Finally, respondent COMELEC’s resort to the doctrine of statistical improbability is flawed. As observed by petitioner Velayo, from experiences in past elections, respondent COMELEC should be aware that it is possible for one candidate or even a few candidates to get zero votes in one or a few precincts. In his Memorandum, petitioner Velayo attached some Statement of Votes as Annexes A to A-5, where it can be readily gleaned that there were not a few candidates who obtained zero votes in certain precincts in that particular election.
(1) "REPUBLIC OF THE PHILIPPINES)
PROVINCE OF NUEVA ECIJA) S.S.
MUNICIPALITY OF GAPAN)Taken together, these affidavits do not constitute substantial evidence to justify the cancellation of petitioner Velayo’s proclamation. As aforestated, Simon, Mallare, Surio ang Gamboa are all watchers of the private respondent and hence are not impartial witnesses. A circumspect examination of these affidavits will show their worthlessness, thus: (1) affidavits of Danilo Simon. In his first Affidavit, he said: "Na, ng dumating ako sa eskuwelahan ng Kapalangan na siyang pinagdadausan ng botohan ay natuklasan ko na walang watchers ang Liberal Party o mga kandidato nito sa mga lugar ng botohan sa Kapalangan." Such a statement does not establish anything wrong with any election return. In his second Affidavit executed on the same date, he changed his statement by alleging: "Na, nuong ika-11 ng Mayo 1998, nagpunta ako sa Himpilan ng Pulisya ng Gapan, Nueva Ecija at inireport ko ang tungkol sa pananakot na ginawa sa mga watchers ng Liberal Party sa mga presinto sa Kapalangan." In the second Affidavit he also mentioned threats to watchers of the Liberal Party. Nevertheless, he did not state the nature of the threat, the names of the watchers, the names of the culprit and whether the threats affected the elections. In the police blotter, Simon further embroidered his report. He alleged therein that it was he whose watcher ID and Appointment were grabbed and thrown away by four unidentified men and who threatened "Magsilayas kayo dito pagpapatayin ko kayo." Also, he added, that his companion watcher Manny Legaspi left the precinct due to the incident. The changes in Simon’s story destroy his credibility. Indeed, the police did not even investigate his report. In any event, Simon’s affidavits did not establish that the voters of private respondent failed to vote. They did not prove that any election return was particularly tampered. They did not prove any electoral malpractice of petitioner Velayo or any of his people. It bears stressing that petitioner Velayo and private respondent Natividad were not the only candidates for mayor of Gapan; (2) the affidavit of Ernesto Mallare was no better. He merely alleged he was not recognized by the teachers as a watcher; that he was not allowed to leave the school compound; and that he heard some men tell the teachers in Precinct 44A2 "na gawing malinis ang pagreretoke ng election return." The affidavit is meaningless for it does not name the teachers concerned and the men who gave the order to tamper the election return and whether or not the teachers obeyed. It is also incredible that he was allowed to stay in the precinct while efforts to tamper with the returns were being made. It is also incredible that he did not report to the police his illegal detention and the tampering of the election returns; (3) likewise the affidavit of Eduardo Surio has but a scrap value. He merely alleged he was barred from entering and leaving the precinct by men whom he did not identify. He said the same men ordered the teachers whom he did not identify "na ayusin ang election returns para masiyahan ang kanilang amo." He did not say whether the teachers obeyed, what election returns were doctored, and the identity of the "amo." Such generalizations do not constitute evidence, let alone evidence of any illegal act or omission on the part of petitioner Velayo to justify cancellation of his proclamation. Surio also failed to make a police report; (4) the affidavit of Rolando C. Gamboa is likewise bereft of value. It did not name names. It alleged "na narinig ko na inutusan ang mga titsers ng limang lalaki na gawing maganda o mataas ang bilang ng boto ng Velayo na hindi halatain ang pagsasaayos." Again, it is not clear whether the teachers complied. It is not clear whether the Velayo referred to is petitioner Arthur Velayo. He also did not report to the police.AFFIDAVIT
Ako si Danilo Simon, may sapat na gulang, asawa at naninirahan sa Mangino, Gapan, Nueva Ecija ng naaayon sa batas ay nagsasaad ng sumusunod:
Na, nuong ika-11 ng Mayo 1998 ay inutusan ako ni Ernesto L. Natividad na magdala ng itinalaga sa mga presinto sa Kapalangan, Mahipon, Bungo at Makabaklay, Gapan, Nueva Ecija.
Na, isinagawa ko ang pagdadala ng pagkain ng watchers ng bandang ika 10:00 ng umaga.
Na, ng dumating ako sa eskuwelahan ng Kapalangan na siyang pinagdadausan ng botohan ay natuklasan ko na walang watchers ang Liberal Party o mga kandidato nito sa mga lugar ng botohan sa Kapalangan.
Na ng malaman ko ang ganitong pangyayari ay ipinagbigay alam ko kay Ginoong Ernesto L. Natividad na kandidato para Mayor ng Gapan, Nueva Ecija na siyang kandidato opisyal ng Liberal Party.
Sa katotohanan ng lahat, ay kusang loob kong nilagdaan ang Affidavit na ito ngayong ika-14 ng Mayo 1998 dito sa Gapan, Nueva Ecija.(SGD). DANILO SIMON
Nagsasalaysay"
(2) "REPUBLIKA NG PILIPINAS )
LALAWIGAN NG NUEVA ECIJA) S.S.
BAYAN NG GAPAN )SINUMPAANG SALAYSAY
Ako, si Danilo Simon, may asawa, Pilipino at naninirahan sa Mangino, Gapan, Nueva Ecija ng naaayon sa batas ay nagsasaad ng sumusunod:
Na, nuong ika-11 ng Mayo 1998, nagpunta ako sa Himpilan ng Pulisya ng Gapan, Nueva Ecija at inireport ko ang tungkol sa ginawa sa mga watchers ng Liberal Party sa mga presinto sa Kapalangan.
Na, kalakip nito ang kopya ng Police Blotter.
Sa katotohanan ng lahat ay kusang loob akong lumagda ngayong ika-14 ng Mayo 1998 dito sa Gapan, Nueva Ecija. Korte(SGD). DANILO SIMON
Nagsasalaysay"
The police report of SPO1 Miguel Inductivo[29] reads:"Republic of the Philippines
National Police Commission
PHILIPPINE NATIONAL POLICE
GAPAN POLICE STATION
Gapan, Nueva Ecija
-o0o-
May 14, 1998
GPS-IN
SUBJECT: Certification
TO WHOM IT MAY CONCERN:
This is to CERTIFY, that it appear(s) in the Police Blotter of Gapan Police Station, Gapan, Nueva Ecija on page 0741 with entry number 0829 dated 11 May 1998, the following entries and read as follows:Case reported and recorded by SPO2 RUPERTO H. SIMON PNP.THREAT
'Danilo Simon y Nunez, 43 years old, married, driver, election watcher, resident of Mangino, Gapan, Nueva Ecija personally appeared and complained to this station that on or about 111800 (sic) May 1998 inside Precinct No. 43A, Kapalangan, Gapan, Nueva Ecija his watcher I.D. and Watcher Appointment was grabbed from his hand and threw by four (4) unidentified men and threatened him "Magsilayas kayo dito pag papatayin ko kayo." Complainant further relayed he and his companion watcher Manny Legaspi of Kapalangan, Gapan, Nueva Ecija left the said voting precinct due to the incident.’(SGD) DANILO SIMON
Issued upon request of Mr. Danilo N. Simon, for whatever any legal purpose it may serve.
FOR THE CHIEF OF POLICE(SGD) MIGUEL S. INDUCTIVO
SPO1 PNP
Investigator"
The Affidavit[30] of Eduardo Mallare reads:
"REPUBLIC OF THE PHILIPPINES )
PROVINCE OF NUEVA ECIJA ) S.S.
MUNICIPALITY OF GAPAN )A F F I D A V I T
Ako, si Eduardo Mallare, may asawa at naninirahan sa Sta. Cruz, Gapan, Nueva Ecija matapos makapanumpa ng naaayon sa batas ay malaya at kusang loob na nagsasaad ng sumusunod:
Na, ako ay inapoint ni G. Ernesto Natividad bilang watcher sa presinto 44A2 sa Kapalangan, Gapan, Nueva Ecija;
Na, ayaw akong kilalaning watcher ng mga maestra na nakatalaga sa presinto 44A2 at hindi rin ako binigyan ng CVC;
Na, hindi ako pinayagang umalis ng compound ng eskwelahan ng Kapalangan hangga’t hindi tapos ang mga ginagawa ng mga titsers;
Na, nadinig na sinabihan ng mga lalake ang mga titser sa presinto 44A2 na gawing malinis ang pagreretoke ng election return.
Lumagda ako sa salaysay na ito ng kusang loob ngayong ika-14 ng Mayo 1998 dito sa Gapan, Nueva Ecija.(SGD) EDUARDO MALLARE
Nagsasalaysay"
The Affidavit[31] of Eduardo Surio reads:
"REPUBLIC OF THE PHILIPPINES )
PROVINCE OF NUEVA ECIJA ) S.S.
MUNICIPALITY OF GAPAN )A F F I D A V I T
Ako, si Eduardo Surio, may asawa at naninirahan sa San Lorenzo, Gapan, Nueva Ecija matapos makapanumpa ng naaayon sa batas ay malaya at kusang loob na nagsasaad ng sumusunod:
Na, itinalaga ako ni G. Eto Natividad bilang watcher niya sa presinto 50A1-50A2 sa Mahipon, Gapan, Nueva Ecija;
Na, hindi ako pinayagang pumasok sa loob ng presinto ng apat na lalake at ipinasabi sa titsers na hindi ako puwede sa loob ng presinto at binawal din akong umalis ng bakuran ng eskwelahan hanggat hindi nila ako pinaaalis;
Na, nadinig ko na sinabihan ng mga lalake ang mga titsers na ayusin ang election return para masiyahan ang kanilang amo.
Sa katunayan ng lahat ay kusang loob akong lumagda ngayong ika-14 ng Mayo 1998 dito sa Gapan, Nueva Ecija.(SGD) EDUARDO SURIO
Nagsasalaysay"
The Affidavit[32] of Rolando Gamboa reads:
"REPUBLIC OF THE PHILIPPINES )
PROVINCE OF NUEVA ECIJA ) S.S.
MUNICIPALITY OF GAPAN )A F F I D A V I T
Ako, si Rolando C. Gamboa, may asawa at nakatira sa Mangino, Gapan, Nueva Ecija matapos makapanumpa ng ayon sa batas ay malaya at kusang loob na nagsasaad ng sumusunod:
Na, inapoint akong watcher ni G. Eto Natividad sa presinto 44A sa Kapalangan, Nueva Ecija nuong May 11, 1998;
Na, hindi ako nakapasok sa kwarto na kinalalagyan ng presinto 44A dahil binawal ako ng limang lalake at sinabihan na huwag akong umuwi hangga’t hindi naguuwian ang mga titsers sa presinto 44A;
Na, hindi ako nakakuha ng CVC dahil ayaw akong bigyan ng mga titsers dahil utos daw sa kanila;
Na, narinig ko na inutusan ang mga titsers ng limang lalaki na gawing maganda o mataas ang bilang ng boto ng Velayo na hindi halatain ang pagsasaayos.
Nilagdaan ko ang salaysay na ito ng kusang loob ngayong ika-14 ng Mayo 1998 dito sa Gapan, Nueva Ecija.(SGD) ROLANDO C. GAMBOA
Nagsasalaysay"
To repeat, all these affiants are watchers of respondent Natividad. The truthfulness of their affidavits is highly suspect. The more impartial witnesses like the teachers were not presented by Natividad. Indeed, these complaints of the affiants do not appear to have been raised by Natividad during the canvassing of the election returns in Precincts 44A, 44A2 and 50A1 and 50A2. Thus, some of the election returns in Precinct Nos. 44A and 44A2, 50A and 50A2 were not excluded because the objections merely related to formal defects and did not affect the integrity and authenticity of the returns.[33] In fine, the affidavits of private respondent Natividad are insufficient proofs to annul petitioner Velayo’s proclamation for as we held in Casimiro, et al. v. COMELEC, et al.:[34]"Obviously, the evidence relied upon mainly by petitioners to support their charges of fraud and irregularities in the election returns and in the canvassing consisted of Affidavits prepared by their own representatives. The self-serving nature of said Affidavits cannot be discounted. As this Court has pronounced, reliance should not be placed on mere affidavits x x x.
"Aside from said sworn statements, the records do not indicate any other substantial evidence that would justify the exclusion of election returns in the canvassing for being fraudulent in character nor a declaration that the proceedings wherein the returns were canvassed were null and void. The evidence presented by petitioners is not enough to overturn the presumption that official duty had been regularly performed. x x x In the absence of clearly convincing evidence, the election returns and the canvassing proceedings must be upheld. A conclusion that an election return is obviously manufactured in the canvass must be approached with extreme caution, and only upon the most convincing proof."
Summary proceeding before the Commission. - All pre-proclamation controversies shall be heard summarily by the Commission after due notice and hearing, and its decisions shall be executory after the lapse of five days from receipt by the losing party of the decision of the Commission, unless restrained by the Supreme Court.This provision has been amended by R.A. No. 7166, §18 of which provides:
Summary disposition of pre-proclamation controversies. - All pre-proclamation controversies on election returns or certificates of canvass shall, on the basis of the records and evidence elevated to it by the board of canvassers, be disposed of summarily by the Commission within seven (7) days from receipt thereof. Its decision shall be executory after the lapse of seven (7) days from receipt by the losing party of the decision of the Commission.The amendment has the following effects:
"In view of the proclamation by the Municipal Board of Canvassers of Gapan, Nueva Ecija, of all the winning candidates for the municipal positions of said municipality on May 17, 1998, as evidenced by duly signed Certificate of Canvass of Votes and Proclamation of the Winning Candidates for Municipal Offices[C.E. form No. 25] with Serial No. 03490337, this Commission [Second Division] RESOLVED, as it hereby RESOLVES TO DISMISS this instant petition for being MOOT AND ACADEMIC.On 23 June 1998, respondent Natividad moved for the reconsideration of the aforesaid order of the COMELEC [Second Division]
"SO ORDERED."[4]
"WHEREFORE, premises considered, the proclamation of Arthur V. Velayo is hereby ANNULLED. The Board of Canvassers of Gapan, Nueva Ecija is hereby DIRECTED to convene immediately exclude Precincts 44A, 44A2 and 50A & 50A1 and immediately proclaim the winning candidate for Mayor of Gapan, Nueva Ecija.In thus resolving, the COMELEC (en banc) ratiocinated:
"Further, they are directed to immediately inform the Commission of their action thereon."[5]
"The objection to these election returns are on the grounds that they are prepared under' duress, force and intimidation.' Petitioner submitted the affidavits of his witnesses attached as Annex 'A' to 'T.' Also submitted as evidence for the exclusion of election returns for Precincts 43A, 43A1, 43A2, 43A3, 44A, 44A1, 44A2 and 50A1/50A2 are the Annex Y, police blotter and affidavits of Danilo Simon, joint affidavits of Nestor Pascual and Gerry Mangahas; Rico Andres and Perfecto San Gabriel; Editha Pasco and Jose San Gabriel; Eladio Bartolome and Edgar Gatus; Rolando Linsangan and Samuel Lazaro; Ramon Natividad and George Lazaro; Eduardo A. Santiago and Guillermo Gatus; Francisco de los Santos and Cesar Nanalis and Roberto S. Delegiado and Eduardo Hernandez.Forthwith, petitioner instituted the instant petition for certiorari to annul the 06th October 1998 resolution of the COMELEC. Respondents were ordered by the Court to comment on the petition. On 14 October 1999, petitioner filed with this Court a "Very, Very Urgent Petition for the Issuance of a Temporary Restraining Order Against Respondents and the Gapan Municipal Board of Canvassers," which the Court simply NOTED, while awaiting the comment of public respondent and which the Court ultimately denied pending a final resolution on the case.
"A close perusal of the above-entitled cases would show that the above objections and appeals were made strictly in accordance with law, however, the Board in defiance of Section 245 and Section 20 of Republic Act 7166, particularly sub-paragraph (i) included the assailed election returns without giving opportunity to the aggrieved party to go on appeal to the Commission."Said Section 20 (I) of R.A. 7166 states:"In this case, it is clear that the objected election returns will adversely affect the results of the elections.
"'The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.'
"Thus, after close perusal of the above cited objected election returns, the Commission finds that the election returns of 44A, 44A2 and 50A1A2 should be excluded from the canvass. It is worth noting that in these precincts 44A and 44A2 petitioner Natividad got zero votes which is statistically improbable. The affidavits of the following watchers respectively to wit: Rolando C. Gamboa, Eduardo Mallare and Eduardo Surio together with the police report of Miguel S. Inductivo of the threats received by Danilo Simon all watchers of petitioner, all in the dialect which attest to the incident wherein they were prevented and threatened from entering the polling place by four identified men and they were able to witness these men threatening the teachers and telling them to tamper the election return in such a way that they will not be noticed by other people and they will have no problem.
"Watchers play a vital role in protecting the votes especially during the counting of the votes in the precinct level. The fact that the watchers were prevented and in fact heard the teachers threatened to have the election returns altered makes the whole election process a mockery in these precincts as the returns are no longer reflective of the true results of the elections. It is no wonder then that in these precincts Natividad got zero votes.
"Further, since there was already an objection against the two members of the Board of Canvassers and their illegal proceedings they cannot proceed to canvass, to cite Section 244 of the Omnibus Election Code:"'Section 244. Contested composition or proceedings of the board. - When the composition or proceedings of the board of canvassers are contested, the board of canvassers shall, within twenty-four hours, make a ruling thereon with notice to the contestant who, if adversely affected, may appeal the matter to the Commission within five days after the ruling with proper notice to the board of canvassers. After due notice and hearing, the Commission shall decide the case within ten days from the filing thereof. During the pendency of the case, the board of canvassers shall suspend the canvass until the Commission orders the continuation or resumption thereof and citing their reasons or grounds therefor.'"Thus, the action of the Board in proclaiming the winning candidate for mayor in the Municipality of Gapan is illegal for violation of Section 20(a) to (i) of R.A. 7166 and Section 244 of the Omnibus Election Code."[6]
Petitioner Velayo, in fine, has raised two principal issues, to wit: (a) whether or not Natividad's motion for reconsideration has been filed out of time and (b) whether or not the COMELEC has gravely abused its discretion in issuing its questioned 06th October 1998 resolution ex parte.
"1) The questioned resolution (Annex "A") of October 6, 1998 is ultra vires and void ab initio because it was issued ex-parte, without notice and opportunity afforded the petitioner to be heard and therefore, violative of due process.
"2) The COMELEC committed grave abuse of discretion amounting to lack of jurisdiction when it did not dismiss respondent Natividad's motion for reconsideration on SPC Nos. 98-002, 98-050 and 98-073 for being filed out of time.
"3) The COMELEC committed grave abuse of discretion amounting to lack of jurisdiction when it excluded the votes cast in Precincts 44A, 44A2, 50A and 50A1 as manufactured and contrary to statistical probabilities without the required notice and hearing consistent with due process.
"4) The COMELEC committed grave abuse of discretion amounting to lack of jurisdiction when it annulled the proclamation of petitioner without the required notice and hearing consistent with due process.
"5) The COMELEC committed grave abuse of discretion amounting to lack of jurisdiction when it did not dismiss said pre-proclamation cases for the reason that the grounds relied upon by respondent Natividad are proper grounds for election protests."[7]
"Section 2. Period for filing motions for reconsideration - A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution or implementation of the decision, resolution, order or ruling."The order issued by the COMELEC [Second Division] dismissing Natividad's petition was promulgated on 09 June 1998. He moved for reconsideration of said order on 25 June 1998.[8]
"SEC. 246. Summary proceeding before the Commission. - All pre-proclamation controversies shall be heard summarily by the Commission after due notice and hearing, and its decisions shall be executory after the lapse of five days from receipt by the losing party of the decision of the Commission, unless restrained by the Supreme Court."All pre-proclamation controversies involving provincial, city or municipal offices are now governed by the amendatory provisions of Sections 17, 18, 19 20, 21 and 22 of Republic Act No. 7166.[12] The pertinent provisions of Sections 245 of the Omnibus Election Code, as thus amended, specifically on the inclusion and exlusion of election returns, reads in full:
"SEC 245. Procedure in disposition of contested election returns. - (a) Any candidate, political party or coalition of political parties contesting the inclusion or exclusion in the canvass of any election returns on any of the grounds authorized under Article XX or Sections 234, 235 and 236 of Article XIX of the Omnibus Election Code shall submit their oral objection to the chairman of the board of canvassers at the time the questioned return is presented for inclusion in the canvass. Such objection shall be recorded in the minutes of the canvass.The decision of the Board of Canvassers may be appealed to the Commission in the manner prescribed under Section 246; viz:
"(b) Upon receipt of any such objection, the board of canvassers shall automatically defer the canvass of the contested returns and shall proceed to canvass the returns which are not contested by any party. "(c) Simultaneous with the oral objection, the objecting party shall also enter his objection in the form for written objections to be prescribed by the Commission. Within twenty-four (24) hours from and after the presentation of such an objection, the objecting party shall submit the evidence in support of the objection, which shall be attached to the form for written objections. Within the same period of twenty-four (24) hours after presentation of the objection, any party may file a written and verified opposition to the objection in the form also to be prescribed by the Commission, attaching thereto supporting evidence, if any. The board shall not entertain an objection or opposition unless reduced to writing in the prescribed forms.
"The evidence attached to the objection or opposition. Submitted by the parties, shall be immediately and formally admitted into the records of the board by the chairman affixing his signature at the back of each and every page thereof."(d) Upon receipt of the evidence, the board shall take up the contested returns, consider the written objections thereto and opposition, if any, and summarily and immediately rule thereon. The board shall enter its ruling on the prescribed form and authenticate the same by the signatures of its members. "(e) Any party adversely affected by the ruling of the board shall Immediately inform the board if he intends to appeal said ruling. The board shall enter said information in the minutes of the canvass, set aside the returns and proceed to consider the other returns. "(f) After all the uncontested returns have been canvassed and the contested returns ruled upon by it, the board shall suspend the canvass. Within forty-eight (48) hours therefrom, any party adversely affected by the ruling may file with the board a written and verified notice of appeal; and within an unextendible period of five (5) days thereafter, an appeal may be taken to the Commission. "(g) Immediately upon receipt of the notice of appeal, the board shall make an appropriate report to the Commission, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report. "(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."(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election. (Sec. 20 of RA 7166)."
"SEC. 246. Summary disposition of pre-proclamation controversies. --- All pre-proclamation controversies on election returns or certificates of canvass shall, on the basis of the records and evidence elevated to it by the board of canvassers, be disposed of summarily by the Commission within seven (7) days from receipt thereof. Its decision shall be executory after the lapse of seven (7) days from receipt by the losing party of the decision of the Commission." (As amended by Sec. 18, R.A. 7166)Unlike the old rule, which has clearly prescribed "due notice and hearing," the amendatory law deletes that requirement and directs the Commission on Elections to instead summarily dispose of all pre- proclamation controversies on election returns or certificates of canvass explicitly "on the basis of the records and evidence to be elevated to it by the board of canvassers."
"This bill proposes to set the national and local elections for May 11, 1992 and provide for the necessary implementing details. It also endorses reforms and measures to ensure the conduct of free, orderly, honest, peaceful and credible elections.Evidently, the law seeks to do away with an otherwise protracted electoral process and to leave any election controversy between the parties to be later resolved in an appropriate election protest.
"Specifically it seeks to:xxx xxx xxx
"12. Provide a mechanism for the summary disposition of pre-proclamation controversies. A pre-proclamation controversy is a unique extraordinary remedy in the Philippine election law. It is supposed to be summary in character by the nature of proceedings. Yet, the Commission is continually faced with prolonged and broadened issues that are more properly pursued through an election protest. Two major reasons for delays are the requirement of 'due notice and hearing' and the scope for raising objections on election returns at the Commission level, even when such were not raised before the board of canvassers. The proposed amendments would authorize the Commission to dispose of pre-proclamation controversies on the basis of the records and evidence presented to the board of canvassers and mandates short time periods for their resolution and execution."[17]
"While normally the procedure of bringing to the Commission objections to the actuations of boards of canvassers has been quite loosely referred to in certain quarters, even by the Commission and by this Court ... as an appeal, the fact of the matter is that the authority of the Commission in reviewing such actuations does not spring from any appellate jurisdiction conferred by any specific provision of law, for there is none such provision anywhere in the Election Code, but from the plenary prerogative of direct control and supervision endowed to it by the above-quoted provisions of Section 168. And in administrative law, it is a too well settled postulate to need any supporting citations here, that a superior body or office having supervision and control over another may do directly what the latter is supposed to do or ought to have done."In its above function, the COMELEC can act ex parte and the law can cut down on, such as it has now done, the additional niceties of notice and hearing which almost invariably can result in unwarranted delays. A pre-proclamation controversy involving election returns is confined to an examination of such returns on their face. A full reception of evidence aliunde and the meticulous examination of voluminous election documents would be "clearly anathema to a pre-proclamation controversy which, by its very nature, is to be heard summarily and decided on as promptly as possible."[19] A party feeling aggrieved for some other grounds is not without recourse for he can, in due time, avail himself of an election protest. The underlying reason, this Court said in Sison vs. COMELEC,[20] "is the policy of the election law that pre-proclamation controversies should be summarily decided, consistent with the law's desire that the canvass and proclamation be delayed as little as possible. That is why such questions which require more deliberate and necessarily longer consideration are left for examination in the corresponding election protest."