Patoray v. COMELEC

8/14/2019 Patoray v. COMELEC

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EN BANC

[G.R. No. 125798. June 19, 1997]

HADJI HAMID LUMNA PATORAY, petitioner, vs. COMMIION ON !L!CTION "n#

TOPAAN D. DIOMIM$A, respondents.

D ! C I I O N

PUNO, J.%

In this petition for certiorari and prohibition, with a prayer for the issuance of a temporary

restraining order (TRO , petitioner !ad"i !amid #umna $atoray assai%s the &une ', )**+

Reso%ution of the COE#EC (-econd .i/ision annu%%ing his proc%amation as mayor0e%ect ofTamparan, #anao de% -ur, and the August )+, )**+ Order of the COE#EC en banc ho%ding in

abeyance the recan/assing of /otes cast in e%ection precinct numbers )+ and '10A2

The facts2 In the ay , )**3 e%ections, petitioner HADJI HAMID LUMNA

PATORAY and pri/ate respondent TOPAAN D. DIOMIM$A were the c%osest ri/a%s for themayora%ty post in the municipa%ity of Tamparan, #anao de% -ur2 The counting of the ba%%ots

showed that petitioner won o/er pri/ate respondent by a s%im margin of twenty0fi/e ('3 /otes,

with petitioner recei/ing 4,55 /otes and pri/ate respondent garnering 4,534 /otes2

.uring the can/ass of the e%ection returns, pri/ate respondent ob"ected to the inc%usion of

four (6 returns from precinct nos2 )+, )5, )* and '10A2 The municipa% board of can/assers

(BC o/erru%ed his ob"ections2 $ri/ate respondent appea%ed to the COE#EC2

In its Ju&' 12, 1995 Re(o&u)*on, the COE#EC modified the decision of the BCand e+&u#e# from the can/ass on%y the two e%ection returns from precinct nos2 )+ and '10

A2 -*) )e e+&u(*on o/ )e(e 0e)u0n(, the twenty0fi/e ('3 /otes margin of petitioner was

wiped out, with pri/ate respondent now recei/ing the highest number of /otes at 4,+)' and petitioner coming in second with 4,6)* /otes2

According%y, petitioner came to this Court on certiorari7)8 impugning the &u%y )', )**3

Reso%ution of the COE#EC2

In our En Banc De*(*on,7'8 #")e# O)oe0 2, 1995, we noted that since there was adiscrepancy between the 9taras: and the written figures of the /otes recei/ed by the candidates in

the e%ection return for precinct )+, the COE#EC (-econd .i/ision shou%d ha/e a%so ordered

a 0eoun) o/ )e "&&o)( o0 u(e# )e Ce0)*/*")e o/ 3o)e( "() *n 40e*n) no. 1 )o #e)e06*ne

)e )0ue nu6e0 o/ o)e( o)"*ne# ' e" 4"0)', "/)e0 #e)e06*n*n )") )e "&&o) o+ "(

no) een )"64e0e# *) 4u0(u"n) )o e)*on 2: o/ )e O6n*u( !&e)*on Co#e.748 As to the

e%ection return for precinct no2 '10A, we ru%ed that the COE#EC erred in resorting to theCertificate of ;otes in e<c%uding the return in said precinct2 -ince the return was incomp%ete for

it %ac=ed the data as to pro/incia% and congressiona% candidates, the app%icab%e pro/ision wou%d

be e)*on 2: o/ )e O6n*u( !&e)*on Co#e which dea%s with materia% defects in e%ection

http://sc.judiciary.gov.ph/jurisprudence/1997/jun1997/125798.htm#_edn1








returns2 Thus, we ru%ed that the COM!L!C (ou&# "e /*0() #e)e06*ne# )e *n)e0*)' o/ )e

"&&o) o+, o0#e0e# )e o4en*n )e0eo/ "n# 0eoun)e# )e "&&o)( )e0e*n "/)e0 (")*(/'*n

*)(e&/ )") )e *n)e0*)' o/ )e "&&o)( *( *n)")2768 >e then directed the COE#EC to issueanother Order in accordance with said .ecision2

According%y, the COE#EC En Banc issued its J"nu"0' 18, 199 O0#e0738 imp%ementing

our .ecision2 !owe/er, *)ou) /*0() "(e0)"*n*n e)e0 )e *n)e0*)' o/ )e "&&o)( "n#"&&o) o+e( "0e *n)"), COM!L!C *66e#*")e&' o0#e0e# )e M$C )o 0eonene in the

COE#EC Office, ani%a, as a -pecia% Board of E%ection Inspectors "n# 0eoun) )e

"&&o)( cast in precincts )+ and '10A, prepare new e%ection returns, enter the new tota%s of the

/otes and then proc%aim the winner2

?orthwith, pri/ate respondent fi%ed a 6o)*on with the COE#EC )o o&# *n "e'"ne )e

0eoun) o/ )e "&&o)( un)*& "/)e0 *) "( #e)e06*ne# )") )e *n)e0*)' o/ )e "&&o) o+e( "n#

)e "&&o)( )e0e*n "# een #u&' 40e(e0e# pursuant to -ections '46 and '43 of the OmnibusE%ection Code2

In an O0#e0, #")e# J"nu"0' 25, 199, the COE#EC denied said motion and he%d that

there is ;no nee# )o 40e&*6*n"0*&' #e)e06*ne )") )e *#en)*)' "n# *n)e0*)' o/ )e "&&o)()e0e*n "e een #u&' 40e(e0e#< for the recount of /otes is not done upon the initiati/e of

this Commission but upon orders of the -upreme Court2 7+8 This Order was not cha%%enged by

pri/ate respondent who e/en participated in the recount2

$ursuant to COE#EC@s &anuary ), )**+ Order, the BC, acting as the specia% Board ofE%ection Inspectors, recon/ened on &anuary '3, )**+ at the Come%ec Office in ani%a to recount

the ba%%ots and recan/ass the returns from precinct nos2 )+ and '10A2 .uring the can/ass, pri/ate

respondent ob"ected to the inc%usion of the ba%%ots from precincts )+ and '10A on the groundthat;)e e&e)*on 0e)u0n( "0e 6"nu/")u0e#, /"0*")e# o0 no) "u)en)* on(*#e0*n )") )e

e&e)*on 0e)u0n( *n&u#e o)e( o0 "&&o)( * "0e (4u0*ou(, 6"0=e# "n# *n"&*# "&&o)(.< 758

The BC re"ected these ob"ections ho%ding that they cannot be considered in a pre0 proc%amation case2 It proceeded with the recounting and recan/assing of /otes where petitionerobtained a tota% of 4,55 /otes as against pri/ate respondent@s 4,534 /otes2 On J"nu"0' 2,

4e)*)*one0 "( 40o&"*6e# "( )e #u&'>e&e)e# 6"'o0 o/ T"64"0"n, L"n"o #e& u0 278 On the

same day, pri/ate respondent mo/ed to dec%are the recount as nu%% and /oid27*8 Instead ofdefiniti/e%y passing upon the issue of whether or not the integrity of the ba%%ot bo<es and ba%%ots

for precincts )+ and '10A was preser/ed, and thereafter ru%e on whether or not the two returns

shou%d be e<c%uded, the COE#EC en banc mere%y noted7)18 the motion in /iew of petitioner@s proc%amation2 On &anuary 41, petitioner too= his oath and assumed the Office of the ayor of

Tamparan2

On ?ebruary 3, )**+, pri/ate respondent fi%ed an e&e)*on 40o)e() with the RTC of arawiCity2 !e a%so fi%ed with the COE#EC (-econd .i/ision a 4e)*)*on /o0 )e "nnu&6en) o/

4e)*)*one0?( 40o&"6")*on7))8 on the ground that the BC did not comp%y with -ection '1 of

R2A2 5)++ in fai%ing to ru%e on his ob"ection during the can/ass2

On June 28, 199 the COE#EC (-econd .i/ision issued a Re(o&u)*on7)'8 granting the petition and annu%%ing petitioner@s proc%amation2 It he%d that the BC shou%d ha/e a%%owed

pri/ate respondent to adduce e/idence before it ru%ed on the ob"ections, as pro/ided under

-ection '1 of R2A2 5)++2 It thus conc%uded that at the time of the proc%amation, pri/ate























respondent@s ob"ections were sti%% pending before the BC2 COE#EC thus directed the BC

to recon/ene and recan/ass the two e%ection returns, obser/ing strict%y the reuirements of

-ection '1 R2A2 5)++, and proc%aim the winner according%y2

$etitioner fi%ed a 6o)*on /o0 0eon(*#e0")*on7)48 with the COE#EC en banc a%%eging that

the procedure in R2A2 5)++ on pre0proc%amation cases app%y on%y when there is a /a%id ground

for a pre0proc%amation contro/ersy2 $etitioner c%aimed that since the ob"ections raised by pri/aterespondent pertained to the casting and appreciation of ba%%ots, the proper remedy was an

e%ection protest2 !ence, pri/ate respondents ob"ection was correct%y o/erru%ed by the BC2

On August ), )**+, the COE#EC en banc issued an order,7)68 thus

;Pen#*n on(*#e0")*on o/ )e Mo)*on /o0 Reon(*#e0")*on, the Commission hereby orders asfo%%ows

9)2 To direct the parties to 6"*n)"*n )e ()")u( @uo 40e"*&*n 40*o0 )o )e /*&*n o/ )e

4e)*)*on and this motion for reconsideration

9'2 To d*0e) )e Mun**4"& $o"0# o/ C"n"((e0( )o 0eonene "n# 0e"n"(( the

e%ection returns pertaining to $recinct Nos2 )+ and '10A, strict%y obser/ing -ection '1 of R2A25)++

942 To constitute a new unicipa% Board of Can/assers of Tamparan, #anao de% -ur < < <

962 To direct the pre/ious unicipa% Board of Can/assers of Tamparan to turn o/er a%%

e%ection documents pertaining to its can/ass to the new unicipa% Board of Can/assers hereincreated2

9-O OR.ERE..<

On August )4, )**+, pri/ate respondent fi%ed a Mo)*on /o0 C&"0*/*")*on7)38 with the

COE#EC en banc2 !e pointed that "/)e0 )e COM!L!C D**(*on "nnu&&e# 4e)*)*one0?(

40o&"6")*on "n# o0#e0e# " 0e"n"((*n o/ )e )o 0e)u0n(, petitioner fi%ed a motion for

reconsideration with the en banc2 $ending the reso%ution of this motion, the en banc, in its

August ) Order, directed the parties to maintain the status quo prior to the annu%ment of

petitioner@s proc%amation, yet, at the same time, ordered the recan/assing of the returns2 $ri/aterespondent sought to c%arify who, in the meantime, sha%% act as mayor of Tamparan2 !e a%so

pointed that the August ) Order of the en banc was high%y uestionab%e considering that by

ordering a recan/ass of the returns, the en banc in effect sustained that portion of the &une '

Reso%ution of the .i/ision directing a recount, without reso%/ing in its entirety the motion forreconsideration regarding the annu%ment of petitioner@s proc%amation2 !e thus urged the

COE#EC en banc to first reso%/e the motion for reconsideration in its entirety before orderinga recount of the ba%%ots2

On Auu() 1, 199, acting on the otion for C%arification, the COE#EC en banc issued

an O0#e0 re/ersing its August ) Order and ho%ding in abeyance the recan/assing of the ba%%ots

unti% the reso%ution of petitioner@s pending motion for reconsideration2









In the meantime, at about '41 p2m2 of the same date, pursuant to the August ) Order 7)+8 of

the COE#EC en banc, the new%y0constituted BC recon/ened at the session ha%% of the

COE#EC to recan/ass the two e%ection returns2 Before the proceedings, howe/er, the BCand the candidates recei/ed copies of the August )+ Order of the COE#EC en banc ho%ding in

abeyance the recon/ening of the BC unti% reso%ution of petitioner@s motion for

reconsideration2 The August )+ Order of COE#EC was issued without gi/ing petitioner achance to fi%e his opposition thereto2 In fact, petitioner@s counse% was unaware of the fi%ing of

pri/ate respondent@s otion for C%arification for he recei/ed a copy of the motion on%y at about

411 p2m2 of the same day2 COE#EC, howe/er, c%aimed that since the BC was set torecon/ene on August )+, it had no choice but to issue its Order on the same day suspending the

recan/assing and without awaiting Opposition from petitioner2

In /iew of the COE#EC Order, the new%y0constituted BC ad"ourned its proceedings2

The August )+ Order showed on its face that Commissioner aambong was on officia% business but the %atter denied this in a 9anifestation and .issent:7)58 stating that he was not informed that

such Order was the sub"ect of consu%tation2 !e registered his dissent against the August )+

Order since it wou%d not resu%t in a piecemea% reso%ution of the case and cou%d be misinterpreted

as a form of f%ip0f%opping on the part of the COE#EC2 Thus, petitioner a%%eges that the August)+ Order was a fa%sified Order and issued by the COE#EC en banc with gra/e abuse of

discretion2

!ence this petition for certiorari and prohibition27)8

>e find the petition impressed with merit2

As correct%y noted by the -o%icitor Denera%, this petition is a mere seue% to the ear%ier case

(D2R2 No2 )'1'4 between the same parties which was a%ready decided by this Court onOctober '6, )**327)*8 The petition at bar actua%%y in/o%/es a 6*(*n)e040e)")*on of our October '6,

)**3 decision where we directed the COE#EC to order a recounting of ba%%ots in precincts )+

and '10Au) on&' "/)e0 #e)e06*n*n )") )e *n)e0*)' "n# *#en)*)' o/ )e "&&o)( "n# "&&o)o+e( e0e 40e(e0e#, 4u0(u"n) )o e)*on( 2: "n# 2: o/ )e O6n*u( !&e)*on

Co#e2 Instead of comp%ying with this directi/e, the COE#EC, in its &anuary ), )**+

Order 7'18 immediate%y directed the BC to recon/ene and recount the ba%%ots2

>hen pri/ate respondent fi%ed a motion as=ing the COE#EC to first determine whetherthe integrity of the ba%%ot bo<es and ba%%ots were preser/ed prior to recon/ening of the BC,

COE#EC, in its Order dated ?ebruary '3, )**+,7')8 found 9no need to pre%iminari%y determine:

this issue2 The recounting proceeded and pri/ate respondent e/en participated therein2 !ence,the ?ebruary '3, )**+ Order of COE#EC became fina% and e<ecutory and with the

participation of pri/ate respondent in the recount, he is deemed to ha/e wai/ed his right to

impugn said Order2

>e come now to the propriety of the procedure adopted by the municipa% board ofcan/assers in refusing to consider the ob"ections raised by pri/ate respondent to the e%ection

returns from precincts )+ and '10A2

$ursuant to -ection '1 of R2A2 5)++, pri/ate respondent fi%ed before the municipa% board ofcan/assers (BC his written ob"ection for the e<c%usion of returns for precincts )+ and '10A,

worded as fo%%ows 9that the e%ection returns are manufactured, fabricated or not

authentic, on(*#e0*n )") )e e&e)*on 0e)u0n( *n&u#e( o)e( on "&&o)( * "0e (4u0*ou(,

















6"0=e# "n# *n"&*# "&&o)(2:7''8 The BC ru%ed that this is not a /a%id ob"ection for a pre0

proc%amation case2 The COE#EC, howe/er, did not categorica%%y ru%e whether the ob"ection is

/a%id in a pre0proc%amation case2 Instead, the COE#EC he%d that the BC fai%ed to fo%%ow the procedure out%ined in -ection '1 of R2A25)++ when it 0e/u(e# )o 0u&e on )*( oe)*on,

on)*nue# *) )e "n"((*n "n# 40o&"*6e# 4e)*)*one0 "( )e *nne0.

-ection '1 of R2A2 5)++ pro/ides for the procedure in the disposition of contested e%ectionreturns, thus >hen a party contests the inc%usion or e<c%usion of a return in the can/ass, on )e

0oun#( 40o*#e# un#e0 A0)*&e BB o0 e)*on( 2:>2:, A0)*&e BIB o/ )e O6n*u(

!&e)*on Co#e, the board of can/assers sha%% defer the can/ass of the contested return, and

within '6 hours recei/e the e/idence of the ob"ecting party2 >ithin '6 hours, opposition to theob"ection may be made by the other party2 pon receipt of the e/idence, the board of can/assers

sha%% ma=e a ru%ing thereon2

>e find that the BC did not err in refusing to consider the ob"ections raised by pri/aterespondent during the can/ass of the returns2 -ection '1 of R2A2 5)++ app%ies on%y where the

ob"ection on the return being can/assed refers to issues proper in a pre0proc%amation

contro/ersy2 nder the Omnibus E%ection Code, pre0proc%amation contro/ersies are %imited to() cha%%enges directed against the o64o(*)*on o0 40oee#*n( o/ )e o"0# o/ "n"((e0( no)

)e o"0# o/ e&e)*on *n(4e)o0(, or (' cha%%enges re%ated to e&e)*on 0e)u0n( to which a party

must ha/e made specific ob"ections2

In the case at bar, pri/ate respondent ob"ected to the two returns on the ground 9that thee%ection returns are manufactured, fabricated or not authentic, considering )") )e e&e)*on

0e)u0n( *n&u#e( o)e( on "&&o)( * "0e (4u0*ou(, 6"0=e# "n# *n"&*# "&&o)(2:7'48 The

ob"ection, as worded, did not cha%%enge the returns, but was directed primari%y atthe "&&o)( ref%ected in the returns2 The issue of whether or not the ba%%ots were manufactured,

fabricated or not authentic in/o%/es an appreciation thereof2 It is sett%ed that issues re%ati/e to the

appreciation of ba%%ots cannot be raised in a pre0proc%amation contro/ersy2 Appreciation of

ba%%ots is the tas= of the board of e%ection inspectors, not the board of can/assers, and uestionsre%ated thereto are proper on%y in e&e)*on 40o)e()(.7'68

In the case of Ae&&" . L"00"E""&,7'38 we ru%ed that the ob"ection raised before the board of

can/assers that certain o)e( 0e/&e)e# *n e0)"*n 0e)u0n( are not /a%id /otes as they shou%d notha/e been counted at a%% is no) " "&*# 0oun# /o0 " 40e>40o&"6")*on on)0oe0(' 2 It is

beyond the competence of the board of can/assers neither is it a pre0proc%amation issue, and the

refusa% of the board of can/assers to consider such ob"ection or ru%e on the same is not erroneous2

Thus, in the case at bar, the BC correct%y ru%ed that pri/ate repondent@s ob"ections are not

proper in a pre0proc%amation contro/ersy2 Thus, the procedure out%ined in -ection '1 of R2A2

5)++ wou%d not app%y in the disposition of returns from precincts )+ and '10A, inc%usion of

which was ob"ected to by pri/ate respondent2

$ri/ate respondent@s recourse now is to proceed with the e%ection contest pending before the

RTC of arawi City and there raise the issue re%ati/e to the a%%eged mista=e in the appreciation

of the ba%%ots inc%uded in the contested e%ection returns2

IN 3I!- -H!R!OF, the temporary restraining order issued by this Court against pub%ic

respondent COE#EC directing it to desist from ru%ing on petitioner@s motion for

reconsideration is made permanent2 The &une ', )**+ COE#EC Reso%ution annu%%ing













petitioner@s proc%amation is re/ersed and set aside, without pre"udice to the fina% outcome and

reso%ution of the e%ection protest fi%ed by pri/ate respondent before the RTC of arawi

City2 No costs2

O ORD!R!D.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kaunan, Mendo!a, "rancisco, #ermosisima, Jr., Panganiban, and $orres, Jr., JJ., concu

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Patoray v. COMELEC