G.R. No. 168253 March 16, 2007
MAYOR NOEL E. ROSAL, Petitioner,
vs.
COMMISSION ON ELECTIONS, Second Division, and MICHAEL VICTOR IMPERIAL, Respondents.
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G.R. No. 172741 March 16, 2007
MAYOR NOEL E. ROSAL, Petitioner,
vs.
COMMISSION ON ELECTIONS and MICHAEL VICTOR IMPERIAL, Respondents.
FACTS : etitioner Noel E. Rosal and private respondent
Michael Victor C. Imperial were candidates for mayor of Legaspi City in the May
10, 2004 elections. After the counting and canvassing of votes, petitioner was
proclaimed as the duly elected mayor of Legaspi City, having received 44,792
votes over private respondents 33,747 and thereby winning by a margin of 11,045
votes.
On May 24, 2004, private
respondent instituted a petition to annul the proclamation,[1] assailing the
canvass of election returns in the 520 precincts that had functioned during the
election. On July 6, 2004, the case was superseded by an election protest filed
by private respondent with the Commission on Elections (Comelec) contesting the
results of the election in all 520 precincts on the grounds of miscounting,
misreading and misappreciation of votes, substitute voting, disenfranchisement
of voters, substitution and padding of votes, and other alleged irregularities
After an initial hearing on
private respondents protest and petitioners answer, the Second Division issued
on November 17, 2004 an order directing the collection of the ballot boxes from
the contested precincts and their delivery to the Comelec.
Revision of the contested
ballots commenced in mid-January of 2005[3] and concluded on February 2, 2005.
The revision report indicated a reduction in petitioners vote count from 44,792
votes to 39,752 and an increase in that of private respondent from 22,474 to
39,184 votes. Shortly thereafter, petitioner filed a motion for technical
examination of contested ballots on the ground that thousands of ballots
revised by the revision committees were actually spurious ballots that had been
stuffed inside the ballot boxes sometime after the counting of votes but before
the revision proceedings. The Second Division denied the motion.
On March 17, 2005, the first
hearing set for the presentation of his evidence, petitioner was directed to
pre-mark his exhibits and formalize his intention to have his witnesses
subpoenaed.
In an order dated April 25,
2005,[4] the Second Division ruled that the testimonies of the proposed
witnesses were unnecessary inasmuch as the Comelec had the authority and
wherewithal to determine by itself the ballots authenticity and, for that
reason, denied the motion and directed petitioner to file forthwith his formal
offer of evidence.
Asserting his right to present
evidence in his defense, petitioner filed on May 6, 2005 a motion for
reconsideration of the April 25, 2005 order. In an order dated May 12, 2005,
the Second Division denied the motion.
On June 15, 2005, petitioner
filed in this Court a petition for certiorari[7] under Rule 65 of the Rules of
Court (docketed as G.R. No. 1628253) assailing the April 25 and May 12, 2005
orders of the Comelecs Second Division for having been rendered with grave
abuse of discretion.
Meanwhile, the Second Division
continued with the proceedings and, following the submission of the parties
memoranda, considered EPC No. 2004-61 submitted for resolution.
In a resolution[8] dated
January 23, 2006, the Second Division then composed of only two sitting
members, namely, Presiding Commissioner Mehol Sadain (now retired) and
Commissioner Florentino Tuason, Jr. declared private respondent Imperial the
winning candidate for mayor of Legaspi City and ordered petitioner Rosal to
vacate said office and turn it over peacefully to private respondent.
On January 30, 2006,
petitioner filed a motion for reconsideration of the Second Divisions
resolution. The motion was denied by the Comelec en banc in a resolution dated
May 29, 2006.[10] In due time, petitioner came to this Court with a petition
for certiorari and prohibition assailing the Comelec en banc resolution. The
case was docketed as G.R. No. 172741 and consolidated with G.R. No. 168253
ISSUE :
HELD : an interlocutory order
rendered by a division of the Comelec, cannot be assailed by means of a special
civil action for certiorari, as only final orders of the Comelec en banc can be
brought to the Supreme Court by that mode.
We disagree. Section 1, Rule 65
of the Rules of Court,
In fine, Kho tells us that an
interlocutory order of a Comelec division should be challenged at the first
instance through a proper motion, such as a motion for reconsideration, filed
with the division that rendered the order. If that fails and no other plain,
speedy and adequate remedy (such as recourse to the Comelec en banc) is
available, the party aggrieved by the interlocutory order may elevate the
matter to the Supreme Court by means of a petition for certiorari on the ground
that the order was issued without or in excess of jurisdiction or with grave
abuse of discretion.
As made abundantly clear by
the foregoing provisions, the mode of preserving the ballots in this
jurisdiction is for these to be stored safely in sealed and padlocked ballot
boxes which, once closed, shall remain unopened unless otherwise ordered by the
Comelec in cases allowed by law.
We summarize the foregoing
doctrines: (1) the ballots cannot be used to overturn the official count as
reflected in the election returns unless it is first shown affirmatively that
the ballots have been preserved with a care which precludes the opportunity of
tampering and all suspicion of change, abstraction or substitution; (2) the
burden of proving that the integrity of the ballots has been preserved in such
a manner is on the protestant; (3) where a mode of preserving the ballots is
enjoined by law, proof must be made of such substantial compliance with the
requirements of that mode as would provide assurance that the ballots have been
kept inviolate notwithstanding slight deviations from the precise mode of
achieving that end; (4) it is only when the protestant has shown substantial
compliance with the provisions of law on the preservation of ballots that the
burden of proving actual tampering or the likelihood thereof shifts to the
protestee and (5) only if it appears to the satisfaction of the court or
Comelec that the integrity of the ballots has been preserved should it adopt
the result as shown by the recount and not as reflected in the election
returns.
The procedure adopted by the
Second Division was a complete inverse of the one outlined above and was
contrary to reason. There was complete arbitrariness on its part.
First, there was no indication
at all that it ever considered the condition of the ballot boxes at the time
they were delivered to the Comelec for revision
Second, it placed the burden
of proving actual tampering of the ballots on petitioner herein (the protestee
below) notwithstanding private respondents previous manifestation that most of
the ballot boxes bore overt signs of tampering[28] and only 79 ballot boxes
were found intact.
Third, instead of diligently
examining whether the ballot boxes were preserved with such care as to preclude
any reasonable opportunity for tampering with their contents, the Second
Division made the probative value of the revised ballots dependent solely on
whether spurious ballots were found among them.
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