EN BANC
[G.R. No. 197975-76. March 19, 2013.]
NILA G. AGUILLO AND BENJAMIN C. DEL ROSARIO, petitioners, vs. COMMISSION ON ELECTIONS, ISIDRO L. HEMEDES, JR. AND ROMMEL A. GECOLEA, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court en banc issued a Resolution dated MARCH 19, 2013, which reads as follows:
"G.R. Nos. 197975-76 Nila G. Aguillo and Benjamin C. del Rosario, petitioners, v. Commission on Elections, Isidro L. Hemedes, Jr. and Rommel A. Gecolea, respondents.
RESOLUTION
In the 2010 local elections for the Municipality of Cabuyao, Laguna, petitioner Nila G. Aguillo (Aguillo) and private respondent Isidro L. Hemedes, Jr. (Hemedes) were among those who ran for Mayor, while petitioner Benjamin C. del Rosario (del Rosario) and private respondent Rommel A. Gecolea (Gecolea) both vied for Vice-Mayor. 1
Hemedes and Gecolea were proclaimed the duly elected Mayor and Vice-Mayor, respectively, with the former obtaining thirty-five thousand seven hundred seventy-two (35,772) votes, and the latter garnering thirty-one thousand nine hundred twenty-seven (31,927) votes. As per Statement of Votes by Precinct, Aguillo came in second to Hemedes, with twenty-nine thousand eight hundred sixty-one (29,861) votes, or a losing margin of five thousand nine hundred eleven (5,911) votes. On the other hand, Del Rosario lost to Gecolea by one thousand four hundred thirty-five (1,435) votes, having garnered only thirty thousand four hundred ninety-two (30,492) votes. 2
On 21 May 2010, Aguillo and del Rosario separately instituted the election protests subject of the present controversy. They each impugned the results in all of the one hundred thirty-three (133) clustered precincts used on the election day, and called for the manual re-appreciation and recount of all ballots. Both protests were practically similarly worded and grounded on supposed various fraudulent and irregular acts during voting, counting of votes, and canvassing of the results, viz.: cAECST
a. Various fraud and irregularities were prevalent at the precinct level, to wit:
a.1. There were repeated or double transmission of results despite initial successful transmission of results from the clustered precinct to the Municipal Board of Canvassers. . . . .
a.2. Voters whose names were not found in the Voter's List were allowed to vote by Board of Election Inspectors (BEIs) upon a handwritten authorization issued by the school principal. . . . .
a.3. Another form of irregularity was the massive vote buying activities, whether in the form of money or kind, perpetrated by Protestee's allies, which further makes it difficult to conclude that the May 10, 2010 elections were clean, credible, honest and democratic. . . . .
a.4. Voters who have yet to cast their votes were no longer allowed to vote at 7 o'clock in the evening of election day even if they were within the thirty (30) meter radius from the pooling place, only because they were known supporters of herein Protestant. . . . .
a.5. There was a PCOS machine with two (2) memory cards . . . .
a.6. Invalid and rejected ballots, probably cast in favor of Protestant, were not shown to the watchers and were unaccounted for. Also, election returns were undisclosed to the watchers. . . . .
a.7. There is also a discrepancy as to the total number of voters who actually voted/valid ballots counted vis-Ã -vis the total votes garnered by the three competing candidates for Mayor. The Statement of Votes would show that the number of voters who actually cast their votes/valid votes [counted] were 84,894 whereas the combined number of votes garnered total[l]ed only 82,487. What happened to the 2,407 votes? If these were spoiled/rejected ballots, why were they not accounted for? SECAHa
a.8. Also noticeable item 981 appearing on page 23 of the Audit Log Report of the server in the Municipal Board of Canvassers, which states "The EML Data from 10.13.72.220 was successfully imported." . . . . The same indicates a successful transmission from one PCOS machine. How about the other PCOS machines distributed in the other clustered precincts? Were the results also successfully imported?
b. Several instances of glitches and technical and electronic problems attending the counting and canvassing of votes, which create doubt as to the PCOS machines' dependability and accuracy:
b.1. Errors in the scanning of the ballots and/or counting or appreciation of the votes cast in the ballots by the PCOS machines. Votes in the ballots lawfully and validly cast in favor of Protestant, for unexplained reasons, were not counted/tallied but instead rejected by the counting machines (PCOS).
b.2. In several clustered precincts, the votes garnered by herein Protestant as a result of the electronic counting do not tally with the actual number of the voters who actually voted for him as notably seen and observed during the voting. With this obvious discrepancy, it is highly probable that the machine count may not be the actual count of votes when done manually.
b.3. Also, in several of the clustered precincts, the assigned PCOS machines failed to function well. There were several ballots which were accomplished properly but perfunctorily rejected by the machines.
b.4. There were also several breakdowns of PCOS machines. It was repeatedly fixed by the technician of Smartmatic but after some time, they again malfunctioned. These instances produced doubts as to the accuracy and quality of the machines to correctly count votes. AIDSTE
b.5. Ballot containing valid votes for the Protestant were rejected by the PCOS machines but which ballots, if manually counted and visually appreciated, should be properly counted as valid votes. To maintain otherwise would result in the unjustified disenfranchisement of voters. 3
Hemedes and Gecolea both denied the allegations in the protests arguing that the protests failed to state a cause of action as, except for self-serving conclusions, hypotheses, assumptions and opinions, they failed to state with specificity the acts or omissions complained of to show the alleged electoral frauds, anomalies or irregularities in the protested precincts. They countered that protestants failed to point out in which precincts the alleged fraud, etc., had taken place in violation of Sec. 7 par. G of the Commission on Elections (COMELEC) Resolution No. 8804 which provides that, "[a]n election protest shall also state: . . .; (g) a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies and irregularities in the protested precincts," thus, rendering it dismissible pursuant to Section 9 for being insufficient in substance. 4
Instead of conducting the preliminary conference as scheduled on 4 June 2010, the Regional Trial Court (RTC) granted, instead, Hemedes and Gecolea's motion made in open court, for a preliminary hearing on their special and affirmative defenses and immediately required both parties to submit their respective memoranda/position papers thereon. 5 After the parties' compliance with said Order, the RTC deemed the matter submitted for Resolution on 17 June 2010. On 21 June 2010, the RTC rendered the assailed Resolution dismissing the protests for being insufficient in form and content, 6 a Decision which the COMELEC, First Division, on appeal, reversed. 7
The COMELEC En Banc, however, reversed the COMELEC's First Division ruling, reinstating the RTC decision as a result. 8
Placed before us for reversal is the decision of the COMELEC En Banc resulting in the dismissal of the electoral protests of petitioners Aguillo and del Rosario. HaAISC
OUR RULING
We DISMISS the petition.
Section 10, Rule 2 of A.M. 10-4-1-SC enumerates the requirements for an election protest to succeed:
SEC. 10. Contents of the protest or petition. — (a) An election protest or petition for quo warranto shall commonly and specifically state the following facts:
(i) Position involved;
(ii) The date of the proclamation; and
(iii) The number of votes credited to the parties per the proclamation.
xxx xxx xxx
(c) An election protest shall also state:
(i) the protestant was a candidate who had duly filed a certificate of candidacy and had been voted for the same office;
(ii) the total number of precincts in the municipality;
(iii) the protested precincts and votes of the parties in the protested precincts per the Statement of Votes by Precinct or, if the votes of the parties are not specified, an explanation why the votes are not specified; and
(iv) a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts. (Emphasis supplied). cTACIa
Section 12 thereof states that:
SEC. 12. Summary dismissal of election contests. — The court shall summarily dismiss, motu proprio, an election protest, counter-protest or petition for quo warranto on any of the following grounds:
(a) The court has no jurisdiction over the subject matter;
(b) The petition is insufficient in form and content as required under Section 10;
(c) The petition is filed beyond the period prescribed by these Rules;
(d) The filing fee is not paid within the period for filing the election protest or petition for quo warranto; and
(e) In a protest case where cash deposit is required, the deposit is not paid within five (5) days from the filing of the protest. (Emphasis supplied).
The dismissal by the RTC of the protests of herein petitioners was grounded on the Protests' insufficiency in form and content because of its failure to state "a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts." As worded in Rule 2, specificity is a requirement under Section 10; failure to satisfy the requirement is a ground for summary dismissal of the protest.
The RTC finding was based on its examination of the eighteen (18) allegations of the protests that voters whose names were not found in the voter's list were allowed to vote by the Board of Election Inspectors (BEIs) upon a handwritten authorization issued by the school principal; that there was massive vote-buying activities, whether in the form of money or kind, perpetrated by Protestees' allies, which further made it difficult to conclude that the 10 May 2010 elections were clean, credible, honest and democratic; that voters who have yet to cast their votes were no longer allowed to vote at 7 o'clock in the evening of election day even if they were within the thirty (30) meter radius from the polling place, only because they were known supporters of herein Protestants. AEIHCS
The RTC found no evidence to support these claims other than the mere affidavits of the Protestants' supporters.
These allegations are not grounds for re-appreciation or re-opening of ballots. A re-appreciation and re-opening of ballots will not establish the veracity of the claims. The truthfulness of all these can only be established by evidence aliunde, which are not in this case even attached to the complaints. The Protestants wanted to convince the RTC that what they were saying was true, because their supporters, uncorroborated by no other evidence at all, so averred. They could have submitted as Annexes the handwritten notes of the school principal, by which notes the named persons were allegedly allowed to vote by the Board of Election Inspectors. Too, no evidence apart from affidavits with such stories was appended to prove that there was vote-buying.
While the protests stated that "there were repeated or double transmission of results despite initial successful transmission of results from the clustered precinct to the Municipal Board of Canvassers," the RTC found that "the alleged repeated or double transmission of results from the precincts to the [Municipal Board of Canvassers MBOC is easily belied by the Statement of Votes by Precincts (SOVP). The SOVP attached to the petitions does not contain any double entry for any precinct. In fact, the SOVP contains entries for 133 precincts only, which, as alleged in the petitions, is the exact composition of the municipality." 9
The protestants also alleged that:
xxx xxx xxx
a.5. There was a PCOS machine with two (2) memory cards . . . .
a.6. Invalid and rejected ballots, probably cast in favor of Protestant, were not shown to the watchers and were unaccounted for. Also, election returns were undisclosed to the watchers. . . . .
a.7. There is also a discrepancy as to the total number of voters who actually voted/valid ballots counted vis-Ã -vis the total votes garnered by the three competing candidates for Mayor. The Statement of Votes would show that the number of voters who actually cast their votes/valid votes [counted] were 84,894 whereas the combined number of votes garnered total[l]ed only 82,487. What happened to the 2,407 votes? If these were spoiled/rejected ballots, why were they not accounted for? CASTDI
a.8. Also noticeable item 981 appearing on page 23 of the Audit Log Report of the Server in the Municipal Board of Canvassers, which states "The EML Data from 10.13.72.220 was successfully imported." . . . The same indicates a successful transmission from one PCOS machine. How about the other PCOS machines distributed in the other clustered precincts? Were the results also successfully imported?
b. Several instances of glitches and technical and electronic problems attending the counting and canvassing of votes, which create doubt as to the PCOS machines' dependability and accuracy:
b.1. Errors in the scanning of the ballots and/or counting or appreciation of the votes cast in the ballots by the PCOS machines. Votes in the ballots lawfully and validity cast in favor ofProtestant, for unexplained reasons, were not counted/tallied but instead rejected by the counting machine (PCOS).
b.2. In several clustered precincts, the votes garnered by herein Protestant as a result of the electronic counting do not tally with the actual number of voters who actually voted for him as notably seen and observed during the voting. With this obvious discrepancy, it is highly probable that the machine count may not be actual count of votes when done manually.
b.3. Also, in several of the clustered precincts, the assigned PCOS machine failed to function well. There were several ballots which were accomplished properly but perfunctorily rejected by the machines.
b.4. There were also several breakdowns of PCOS machines. It was repeatedly fixed by the technician of Smartmatic but after some time, they again malfunctioned. These instances produced doubts as to the accuracy and quality of the machines to correctly count votes. HcSCED
b.5. Ballot containing valid votes for the Protestant were rejected by the PCOS machines but which ballots, if manually counted and visually appreciated, should be properly counted as valid votes. To maintain otherwise would result in the unjustified disenfranchisement of voters. 10 (Emphasis supplied).
Facially, specific precincts were not mentioned and it did not escape us that the protestants did not even attach any election returns to their protests. Pursuant to the law on automated elections, the BEI's have to prepare and distribute 30 copies of election returns. The law names the persons and institutions entitled to copies of the election returns, among them, are the dominant parties, the citizens of electoral arm and Kapisanan ng mga Broadcasters. The alleged irregularity that election returns were undisclosed to the watchers were unfounded. Be that as it may, it could have been easy for the protestants to get their copies of the election returns from these other bodies. 11
On further review of the RTC decision which was, resultantly reinstated by the COMELEC En Banc, we find further demerits in petitioners' positions:
The allegation that a PCOS machine had two memory cards is not by itself an irregularity. It is a feature of the PCOS machine that it has two memory cards, the main memory card and the back up memory card. 12
It is alleged that in several of the clustered precincts, the assigned PCOS machines failed to function well. Apart from the fact already referred to that there is no specification of the precincts where this happened, the allegation was belied by the SOVP which contained complete result in all 133 precincts. 13
The allegation that in several clustered precincts the votes electronically counted in favor of the protestants do not tally with the actual number of votes who actually voted for them is without any detail or numbers to support the conclusion. 14 DISaEA
That item No. 981 in the Audit Log Report which states "the EML Data from 10.13.72.220 was successfully imported" is an indication that this is the only PCOS machine that had successfully transmitted electronically its return to MBOC server, is obviously non-sequitur. Actually, the Audit Log Report contained numerous entries that state "successfully processed the information from tally number . . ." which indicates successful electronic transmission of the results from the PCOS machine bearing the code number. 15
The alleged errors in the transmission of results from the PCOS machine in the precinct level to the consolidating machine of the MBOC could have been easily supported by copies of the election returns for comparison with the data reflected in the Certificate of Canvass, if indeed there was any error or discrepancy. Without taking any effort to produce and annex to the petitions the concerned election returns, the protestants instead, assign as another irregularity that the watchers were not given copies of the election returns. 16
As the RTC safely concludes, what protestants entertain are mere doubts, fears and apprehensions in the efficiency, accuracy and reliability of the automated elections, fuelling their self-serving belief that they probably won.
These doubts, fears and expressions of probability are not actionable. They do not constitute a cause of action simply because they are not yet in the realm of a wrong which is the essence of a cause of action. 17
An election protest is allowed to ascertain, not suppress, the true will of the electorate. It is not meant to save face, to keep pride for the loser. This is exactly the reason why an election protest is required to state "a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts." An election protest which is not only divisive but also disruptive of the affairs of a political unit cannot and should never be allowed to proceed on mere belief and suspicion of a losing candidate. cDAITS
As we stressed in Peña v. House of Representatives Electoral Tribunal, 18the provision that the petition must be sufficient in form and substance means that the petition must be more than merely rhetorical. If the allegations contained therein are unsupported by even the faintest whisper of authority in fact and law, then there is no other course than to dismiss the petition, otherwise, the assumption of an elected public official may, and will always be held up by petitions of this sort by the losing candidate. 19
Indeed the lack of any merit in the petition was belatedly acknowledged by petitioners themselves who, in a Manifestation filed on 28 February 2013, moved for the withdrawal of their petition.
WHEREFORE, we DISMISS the Petition in G.R. No. 197975-76." (adv21)
Very truly yours,
(SGD.) ENRIQUETA E. VIDALClerk of Court
Footnotes
1.Rollo, p. 362.
2.Id. at 362-363.
3.Id. at 369-372.
4.Id. at 113.
5.Id. at 55.
6.Id. at 145-154.
7.Id. at 53-67.
8.Id. at 30-46.
9.Id. at 151-152.
10.Id. at 370-372.
11.Id. at 61-62.
12.Id.
13.Id.
14.Id.
15.Id.
16.Id.
17.Id.
18.337 Phil. 70 (1997).
19.Id. at 77.