Martinez v. House Of Representatives Electoral Tribunal

JR., J.:

This petition for certiorari under Rule 65 seeks to nullify the Decision1 dated May 28, 2009 of the House of Representatives Electoral Tribunal in HRET Case No. 07-035 dismissing the election protest and declaring private respondent as the duly elected Representative of the Fourth Legislative District of Cebu, and the Resolution2 dated July 30, 2009 denying petitioner's motion for reconsideration thereof. The Facts In the May 14, 2007 elections, petitioner Martinez and private respondent Salimbangon were among the candidates for Representative in the Fourth Legislative District of Cebu Province. On March 29, 2007, Edilito C. Martinez, a resident of Barangay Tambongon, Daan-Bantayan, Cebu, filed his certificate of candidacy for the same position.

On April 3, 2007, Martinez filed a petition to declare Edilito C. Martinez a nuisance candidate.3 However, the Commission on Elections Second Division issued its Resolution declaring Edilito C. Martinez a nuisance candidate only on June 12, 2007 or almost one (1) month after the elections. On July 9, 2007, Salimbangon was proclaimed winner in the congressional elections for the Fourth Legislative District of Cebu on the basis of official results showing that he garnered sixty-seven thousand two hundred seventy-seven (67,277) votes as against Martinez who garnered sixty-seven thousand one hundred seventy-three (67,173) votes, or a difference of one hundred four (104) votes. Martinez filed an Election Protest Ad Cautelam on July 18, 2007 and on July 26, 2007, the HRET granted his motion to convert the same into a Regular Protest of all one thousand one hundred twenty-nine (1,129) precincts of the Fourth Legislative District of Cebu.

The election protest is based on three hundred (300) ballots more or less with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative which the Board of Election Inspectors (BEI) did not count for Martinez on the ground that there was another congressional candidate (Edilito C. Martinez) who had the same surname.

Martinez further alleged that he lost several thousand votes as a result of incorrect appreciation of ballots not counted in his favor while clearly marked ballots, groups of ballots which appeared to have been prepared by one (1) person, individual ballots which appeared to have been prepared by two (2) or more persons, and fake and unofficial ballots were read and counted in favor of Salimbangon. He also claimed that the votes reflected in the election returns were unlawfully increased in favor of Salimbangon while votes in his favor were unlawfully decreased.4 Salimbangon filed his Answer with Counter-Protest stating that the Minutes of Voting (MOV) inside the ballot boxes in all the protested precincts contain no recorded objections regarding straying of votes claimed by Martinez, and that it was very seldom, if at all, that there were ballots with only "MARTINEZ" or "C. MARTINEZ"

written on the line for Representative. He counter-protested 954 precincts on grounds of coercion/intimidation and duress; massive vote-buying; "lansadera "; misreading/miscounting/misappreciation of votes; and other electoral anomalies and irregularities. During the revision, ballots with only "MARTINEZ"

or "C. MARTINEZ" written on the line for Representative were not counted and temporarily classified as stray. These comprise majority of the 9,831 stray ballots claimed by Martinez.5 HRET Ruling In its Decision dated May 28, 2009, the HRET resolved each of the claims and objections respectively raised by protestant and protestee applying the rules for appreciation of ballots.

The Tribunal recognized as most crucial the issue of whether or not ballots with only "MARTINEZ" or "C.

MARTINEZ" written on the line for Representative should be counted in favor of Martinez. Thus, the election protest "will rise or fall on how the Tribunal [appreciates said] ballots."6 Ruling on the issue, the HRET sustained the BEI in considering the ballots as stray in accordance with Sec. 211 (1) of the Omnibus Election Code which provides: "Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid, if there is no other candidate with the same first name or surname for the same office.

"7 [EMPHASIS SUPPLIED.] Since the name of Edilito C. Martinez was still included in the official list of candidates on election day (May 14, 2007), the HRET held that five thousand four hundred one (5,401) ballots with "MARTINEZ" or "C. MARTINEZ" only written on the line for Representative were properly denied on the ground that there was no way of determining the real intention of the voter.

These ballots were included in the 7,544 ballots denied as votes for Martinez in 961 precincts.8 Commiserating with Martinez on the delayed resolution of SPA Case No. 07-133 (PES), the HRET stated: "We sympathize to (sic) the protestant that he is the victim of the inaction of the Comelec in failing to decide the petition to disqualify Edilito C. Martinez as nuisance candidate on or before the May 14, 2007 elections. After all, it appears that the latter did not even lift a finger to oppose the petition for his declaration as nuisance candidate and that per its decision rendered only twenty-nine (29) days after the May 14, 2007 elections, Edilito C. Martinez was indeed a nuisance candidate. "As it is, the delay committed by the Comelec in deciding the petition to disqualify Edilito C. Martinez as nuisance candidate on or before May 14, 2007 election did not only cause injustice to herein protestant but worst, had resulted to (sic) the disenfranchisement of five thousand four hundred one (5,401) electorates whose votes could have changed the number of votes garnered by the parties herein if not changed altogether the outcome of the election itself."91avvphi1 The final overall results of recount and appreciation of ballots, election documents and other evidence in the entire 1,129 precincts as determined by the HRET are as follows :10 Overall Fourth District of Cebu Votes PROTESTANT PROTESTEE 1] Votes per physical count in 961 precincts where there was ballot appreciation 57,758 57,132 2] Votes in 12 precincts without ballots found during revision (based on election returns) 998 660 3] Votes per election returns in 156 precincts in which several spurious ballots were placed after elections, counting and/or canvassing of votes 9,937 7,815 68,693 65,607 Less: Objected ballots rejected 4,333 860 Add: Claimed ballots admitted 2,287 2,348 Unclaimed ballots admitted 8 11 Restored Ballots 2 Total Votes in the Contested Precincts After Appreciation of Evidence 66,655 67,108 PLURALITY OF PROTESTEE'S VOTES 453 Taken from Revision Reports Namely Precinct Nos. 51A, Daan-Bantayan, 40A, 56A, 79A, all of Bantayan, 15C, 19D, 66B/67A, 88A, 105A, all of Bogo, 40A/41A, 70A/71A, all of Medellin, 30A, Sta.

Fe.