French v. Commission On Elections

J.B.L., J.:

In the election of November 14, 1967, petitioner Barney French was the official Nacionalista Party candidate for mayor of Polomolok, Southern Cotabato. His opponent was the re-electionist mayor, respondent Tomas Bayan. The members of the Municipal Board of Canvassers, although previously notified to meet on November 27, 1967 at the Barracks at General Santos, Southern Cotabato, as directed by the Commission on Elections (COMELEC), failed to appear, with the exception of the Chairman, Vice-Mayor Conrado Delfin.

In view of their absence, they were suspended by the COMELEC representative, Atty. Mauro T. Paredes, who appointed five substitutes for the absent members; and the replacements having qualified, the Board of Canvassers proceeded to receive the return's from the Municipal Treasurer, and to canvass the same. After completion, the Board proclaimed as elected by a plurality of votes Barney French as Mayor, Mrs. Lilia Matuliano as Vice-Mayor, and eight councilors. The corresponding certificate was signed on the same day.

On November 30, 1967, however, the original board of canvassers, composed of the Vice-Mayor, three councilors and four substitutes for re-electionist members, made a second canvass without the intervention of the COMELEC representatives and proclaimed Tomas Bayan and Fortunato Busgaves as Mayor and Vice-Mayor elect, with eight councilors (seven of them being those proclaimed in the preceding canvass). Bayan then petitioned the COMELEC, on December 5, 1967, to annul and set aside the first canvass of November 27, 1967, as illegal and irregular for lack of notice, and to declare the canvass of November 30, 1967 as the proper one. This petition was opposed by Barney French, petitioner in the case before us.1äwphï1.ñët On December 27, the COMELEC resolved: (1) to annul and set aside both proclamations; (2) to direct the official Municipal Board of Canvassers of Polomolok to reconvene and recanvass the election returns of said municipality and thereafter proclaim the winning candidates.

using the election returns copy for the Municipal Treasurer, with the election returns copy for the Commission on Elections as reference, and in case of discrepancy the parties may resort to a judicial recount as a remedy; and (3) to designate Attys. Guillermo Lucas and Gerardo Bautista as supervisors of the aforestated recanvass.1äwphï1.ñët The ordered recanvass was begun at the PC Barracks of General Santos on 2 January 1967. The minutes show that when the box of returns was produced, Atty. Lucas, COMELEC supervisor, observed that all the three keys to the ballot box containing the returns were in possession of the Municipal Treasurer Matullano, when, by law, one should be in the possession of the Secretary and another in that of the Chairman of the Board of Canvassers.

The treasurer explained that when he assumed office, the former acting treasurer, Amado de Vera, turned all the keys over to him on December 1, 1967. Then the Chairman observed that the pin (at the back of the ballot box cover) was loose; and upon opening the box, one of the self-locking metal seals (No. E-97) was missing, and was found in the inner compartment of valid ballots. It was thereafter found that the Treasurer's copies of the returns for Precincts Nos. 9, 10 and 11 differed from the COMELEC copies as to the votes obtained by respondent Bayan, as follows: Municipal Treasurer's Copy COMELEC Copy Precinct No. 9 23 16 Precinct No. 10 120 100 Precinct No. 11 78 70 Upon petition of counsel for French, the canvass was suspended to enable both parties "to resort to legal remedies".

Respondent Bayan suggested all ballot boxes and election returns be deposited in the possession of the COMELEC Manila. The board granted both requests, but made of record that "Counting of Election Return which was found not tampered, from Precinct No. 21 down to Precinct No. 10 were completed, and partly of Precinct No. 9 was finished" (Minutes, Petition, Annex N).

The two COMELEC supervisors reported the anomalies to the Commission, recommending that the recanvassing be done in Manila, and that the COMELEC's copies of the returns be used "because of the glaring discrepancies between the Treasurer's copy and the Comelec copy" (Petition, Annex H). On January 11, 1968, in view of the written objections of respondent Bayan, the COMELEC resolved that the canvassing be resumed and continued at the PC Barracks of General Santos, Cotabato, "provided that should there be discrepancies in the election returns, the aggrieved party may go to the proper court for the appropriate judicial relief".

Upon motion for reconsideration of petitioner French, the COMELEC, on January 23, reaffirmed its resolution of January 11, with the modification that, after canvass, "the proclamation of any winning candidate be withheld until further orders of the Commission." . Barney French then resorted to this Court for a writ of certiorari with preliminary injunction to set aside the resolutions of the COMELEC dated January 11 and 23, 1968, and that the Municipal Board of Canvassers of Polomolok be directed to recanvass the election returns on the basis of the COMELEC copies instead of those of the Municipal Treasurer.

It is his position that the facts on record show that the copies of the treasurer (at least those of Precincts Nos. 9, 10 and 11) had been tampered with after the first canvass of November 27, 1967. We gave the petition due course, and issued a restraining order to stop implementation of the COMELEC resolutions complained of.1äwphï1.ñët Respondents filed answers in due time. They contend that the petition is premature in that (a) there is no showing that the discrepancies noted would affect the result of the election and (b) that the Municipal Board of Canvassers has not been given an opportunity to pass on the authenticity of the returns.

They further claim that there is no sufficient evidence of alteration and tampering, and that the proper remedy is a judicial recount. Plainly, the capital question in this case is whether the Municipal Treasurer's copies of the returns for at least Precincts Nos. 9, 10 and 11 of Polomolok, Southern Cotabato, are authentic or falsified. The record before us is convincing that we are not here dealing with innocent or bona fide discrepancies, but with a case of tampering made after the first canvass of November 27, 1967 with intent to falsify the true results.

This is conclusively shown by the undisputed fact that the tabulation of the results of the first canvass (Petition, Annex M) shows that when the copies of the returns, originally submitted by the Municipal Treasurer, were first examined on November 27, 1967, the number of votes for candidate Bayan appearing in these returns was the same one shown in the copies of the returns in the hands of the Commission on Elections for the same precincts; but when the returns were examined again in the presence of the COMELEC supervisors on January 2, 1968, the number of votes received by the candidate Bayan, according to the same treasurer's returns, no longer coincided with that shown in the COMELEC copies but were increased. Thus -. P R E C I N C T S No. 9 No. 10 No. 11 Canvass of November 27, 1967: Bayan 16 100 70 COMELEC Copies: Bayan 16 100 70 Recanvass of January 2, 1968: Bayan 23 120 78 Increase