Dimangadap v. Commission on Elections

EN BANC

[G.R. No. 174791. March 19, 2013.]

BASHIER D. DIMANGADAP, petitioner, vs. COMMISSION ON ELECTIONS AND ABDUL HAMID ZOBAIR ESMAEL SARONAY, 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. No. 174791 (Bashier D. Dimangadap v. Commission on Elections and Abdul Hamid Zobair Esmael Saronay)

RESOLUTION

For the resolution of the Court is a Petition for Certiorari under Rule 64 in relation to Rule 65 of the Rules of Court, assailing the 18 September 2006 Resolution 1 of the Commission on Elections En Banc in SPC No. 04-154, which effectively annulled the proclamation of petitioner Bashier D. Dimangadap.

Factual Antecedents

Petitioner Bashier D. Dimangadap (petitioner) and respondent Abdul Hamid Zobair Esmael Saronay (respondent) both vied for seats in the Sangguniang Bayan of Tugaya, Lanao del Sur during the 10 May 2004 National and Local Elections. IcTCHD

After proclamation, respondent filed a petition, captioned as a petition for the declaration of the illegality of the proceedings of the canvassing board and the annulment of petitioner's proclamation as the eighth winning candidate for municipal councilor, 2 docketed as SPC No. 04-154. Respondent cited the following circumstances as bases for declaring the proceedings before the Municipal Board of Canvassers (MBC) as null and void:

(a) The votes canvassed in favor of the candidates for the position of Sangguniang Bayan Members were not directly transferred and tallied to the Statement of Votes ("SOV") but placed in a "columnar pad" which were not computed and signed by the watchers or counsels of the candidates;

(b) Guibon A. Matanog, Chairman of the MBC, suspended the proceedings and transferred the said number of votes to the SOV in her residence in the absence of the watchers or counsels of the parties;

(c) The MBC did not resume the canvassing for the position of Municipal Councilor; and

(d) Finally, the MBC made no action in his petition for correction of manifest error. 3

Additionally, respondent claimed that petitioner garnered 56 more votes than what he was legally entitled to by virtue of the patent manifest errors contained in the election returns coming from Precinct Nos. 8-A and 36-A. 4

The Ruling of the Commission on Elections

In a Resolution dated 6 December 2004, 5 the Commission on Elections (Comelec) Second Division dismissed the petition for lack of merit.

The Second Division held that respondent failed to present sufficient evidence to show that the election returns themselves were incomplete, altered, tampered, contain material defects or discrepancies, or were obviously manufactured or not authentic in order to properly raise it as an issue in a pre-proclamation controversy. 6 In any event, it added, while the alleged irregularities may indeed involve a violation of the rules governing the procedure for canvassing of election returns, they do not directly affect the authenticity and genuineness of the election returns as to make it an issue proper in a pre-proclamation controversy. 7 Further, it observed that the resolution of the irregularities claimed by respondent would require more consideration and full reception of evidence aliunde, and thus cannot be properly adjudicated in a pre-proclamation controversy. 8 IcHDCS

Respondent moved for reconsideration. In a Resolution dated 18 September 2006, 9 the Comelec En Banc reversed the Second Division, annulled the proclamation of petitioner, and directed the MBC to reconvene and to correct the manifest errors stated in the petition, and to proclaim the eighth (8th) winning candidate for the Sangguniang Bayan of Tugaya, Lanao del Sur.

The Banc discovered that discrepancies were present in the election returns of Precinct Nos. 8-A and 36-A, wherein the number of votes, as reflected in the taras, do not correspond with the number of votes written in words. Specifically, the Banc noted that:

. . . On page 5 of the election return for Precinct No. 8-A, with Serial No. 01201411, [petitioner] received forty-three (43) votes as represented by 43 taras but the figure written under the column of the total number of votes is ninety-six (96); also, on page 4 of the election return for Precinct No. 36-A with Serial No. 01201415, [petitioner] received fifteen votes as represented by 15 taras but the figure written under the column of the total number of votes is twenty-five (25). The tampering was even done crudely as the words twenty-five was over-imposed over the word fifteen, and the figure one (1) in number fifteen (15) was re-written to look like number two (2), thereby increasing [petitioner's] vote to twenty-five (25). 10

The Present Petition

Feeling aggrieved, petitioner filed the present Petition for Certiorari with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, essentially arguing that the Comelec En Banc gravely abused its discretion when it reversed the ruling of the Second Division which, contrary to the position of the Banc, was correct.

Petitioner avers that the dismissal of SPC No. 04-154 was warranted for the following reasons: First, respondent failed to file, in the prescribed form, his objection/opposition to the canvass of the election returns from Precinct Nos. 8-A and 36-A in accordance with Comelec Resolution No. 6669 and Section 20 of R.A. No. 1766. Second, instead of filing an appeal against the ruling of the MBC to include the questioned election returns, respondent belatedly interposed a petition to correct manifest errors in the certificate of votes. Third, petitioner was already proclaimed on May 13, 2004 but respondent's petition to declare the proceedings of the MBC as null and void and to suspend the effects of proclamation of the winning candidate was filed only on 19 May 2004. Fourth, a petition to annul or suspend the effects of proclamation must be filed within ten (10) days after proclamation. Fifth, respondent failed to present sufficient evidence to show that the election returns themselves were incomplete, altered, tampered, contain material defects or discrepancies, and were obviously manufactured or not authentic in order to properly raise it as an issue in a pre-proclamation controversy. 11 TcSAaH

In the Resolution dated 25 October 2006, the Court required respondent to comment on the petition as well as on the motion for temporary restraining order and/or writ of preliminary injunction. In the Resolution 12 dated 23 January 2007, the Court noted the Manifestation of Atty. Nasib D. Yasin, counsel for respondent, stating, in essence, that he already withdrew his appearance as counsel for respondent while the case was still pending before the Comelec. Hence, in the Resolution 13 dated 27 February 2007, we directed the service of the Resolution dated 25 October 2006 upon respondent himself.

In the Resolution 14 dated 2 December 2008, the Court required respondent to show cause why he should not be disciplinarily dealt with or held in contempt for failure to file his comment. For his continued failure to file said comment, respondent was fined P1,000.00 in the Resolution 15 dated 2 June 2009; an additional P2,000.00 in the Resolution dated 6 October 2009; an additional P2,000.00 in the Resolution 16 dated 9 March 2010; and an additional P5,000.00 in the Resolution 17 dated 3 August 2010.

In the Resolution 18 dated 19 July 2011, the Court reiterated the directive on respondent to pay the aggregate fine amounting to P10,000.00 and to file his comment. Despite such notice and warning, respondent still failed to comply with the Court's directives. Hence, in a Resolution 19 dated 6 March 2012, the Court declared respondent guilty of contempt of court and ordered his arrest and detention until full compliance. Unfortunately, the National Bureau of Investigation (NBI) was unable to effect the arrest of respondent as the latter had no record on file with the NBI's Identification and Records Division and as no information as to his whereabouts was elicited. This Manifestation 20 of the NBI was noted in the Resolution dated 24 April 2012.

Our Ruling

We dismiss the petition.

The issue of who were the rightful members of the Sangguniang Bayan of Tugaya, Lanao del Sur during the 10 May 2004 National and Local Elections has been rendered moot and academic by the expiration of the term of the contested office, and the election and proclamation of a new set of municipal officials after the 14 May 2007 National and Local Elections. Indeed, we have repeatedly held that it is an exercise in futility for the Court to still indulge itself in a review of the records and in an academic discussion of the applicable legal principles to determine who really won the elections, because whatever judgment is reached, the same can no longer have any practical legal effect or, in the nature of things, can no longer be enforced. 21

This being said, the Court notes that under Section 243 of the Omnibus Election Code, the tampering of, as well as discrepancies in election returns are proper grounds for a pre-proclamation controversy. As found by the Comelec En Banc, indeed, discrepancies were present in the election returns of Precinct Nos. 8-A and 36-A, wherein the number of votes, as reflected in the taras, did not correspond with the number of votes written in words. These being apparent on the face of the election returns, the Banc was correct in ordering the correction of the discrepancies without the necessity of opening the ballot box. The correction can be carried out by recounting the number of taras in the election return and revising the written words and figures to conform to the number of taras. 22

WHEREFORE, the Court Resolves to: SHCaDA

(1) DISPENSE with the comment of respondent Abdul Hamid Zobair Esmael Saronay;

(2) RECALL the Resolution dated 3 August 2010, and dispense with the payment of fines; and

(3) DISMISS the petition for being moot and academic." (adv6)

Very truly yours,

 

(SGD.) ENRIQUETA E. VIDALClerk of Court

 

Footnotes

1.Rollo, pp. 18-21.

2.Id. at 29.

3.Id. at 23.

4.Id. at 29.

5.Penned by Commissioner Manuel A. Barcelona, Jr., with Commissioner Florentino A. Tuason concurring and Presiding Commissioner Mehol K. Sadain dissenting. Id. at 22-28.

6.Id. at 25.

7.Id. at 27.

8.Id. at 26.

9.Per Curiam, with Chairman Benjamin S. Abalos, Sr. and Commissioners Resurreccion Z. Borra, Florentino A. Tuason, Jr., Romeo A. Brawner, Rene V. Sarmiento, and Nicodemo T. Ferrer concurring. Id. at 18-21.

10.Id. at 19.

11.Id. at 10-11.

12.Id. at 58.

13.Id. at 60.

14.Id. at 65.

15.Id. at 71.

16.Id. at 79-80.

17.Id. at 86-87.

18.Id. at 95-96.

19.Id. at 102-103.

20.Id. at 106-107.

21.Basmala v. Comelec, G.R. No. 176724, 6 October 2008, 567 SCRA 664, 668.

22.Ceron v. Comelec, G.R. No. 199084, 11 September 2012.