2S ADMIN Case Digests

TOPIC Procedure for recounting ballots. ANG HABA NG KASO NA ITO BAKIIIIIIT AUTHOR Flores

CASE TITLE Rosal vs. COMELEC GR NO 168253

TICKLER Revisiting ballots DATE March 16, 2007

DOCTRINE (1) the ballots cannot be used to overturn the official count as reflected in the election returns unless it is first
shown affirmatively that the ballots have been preserved with a care which precludes the opportunity of
tampering and all suspicion of change, abstraction or substitution; (2) the burden of proving that the integrity
of the ballots has been preserved in such a manner is on the protestant; (3) where a mode of preserving the
ballots is enjoined by law, proof must be made of such substantial compliance with the requirements of that
mode as would provide assurance that the ballots have been kept inviolate notwithstanding slight deviations
from the precise mode of achieving that end; (4) it is only when the protestant has shown substantial
compliance with the provisions of law on the preservation of ballots that the burden of proving actual tampering
or the likelihood thereof shifts to the protestee and (5) only if it appears to the satisfaction of the court or
Comelec that the integrity of the ballots has been preserved should it adopt the result as shown by the recount
and not as reflected in the election returns.
FACTS
Petitioner Noel E. Rosal and private respondent Michael Victor C. Imperial were candidates for mayor of
Legaspi City in the May 10, 2004 elections. After the counting and canvassing of votes, petitioner was
proclaimed as the duly elected mayor of Legaspi City, having received 44,792 votes over private respondents
33,747 and thereby winning by a margin of 11,045 votes.

On May 24, 2004, private respondent instituted a petition to annul the proclamation, assailing the canvass of
election returns in the 520 precincts that had functioned during the election. On July 6, 2004, the case was
superseded by an election protest filed by private respondent with the Commission on Elections (Comelec)
contesting the results of the election in all 520 precincts on the grounds of miscounting, misreading and
misappreciation of votes, substitute voting, disenfranchisement of voters, substitution and padding of votes,
and other alleged irregularities

After an initial hearing on private respondents protest and petitioners answer, the Second Division issued on
November 17, 2004 an order directing the collection of the ballot boxes from the contested precincts and
their delivery to the Comelec.

Revision of the contested ballots commenced in mid-January of 2005 and concluded on February 2, 2005. The
revision report indicated a reduction in petitioners vote count from 44,792 votes to 39,752 and an increase in
that of private respondent from 22,474 to 39,184 votes. Shortly thereafter, petitioner filed a motion for
technical examination of contested ballots on the ground that thousands of ballots revised by the revision
committees were actually spurious ballots that had been stuffed inside the ballot boxes sometime after the
counting of votes but before the revision proceedings. The Second Division denied the motion.

On March 17, 2005, the first hearing set for the presentation of his evidence, petitioner was directed to pre-
mark his exhibits and formalize his intention to have his witnesses subpoenaed.

In an order dated April 25, 2005, the Second Division ruled that the testimonies of the proposed witnesses
were unnecessary inasmuch as the Comelec had the authority and wherewithal to determine by itself the
ballots authenticity and, for that reason, denied the motion and directed petitioner to file forthwith his formal
offer of evidence.

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Asserting his right to present evidence in his defense, petitioner filed on May 6, 2005 a motion for
reconsideration of the April 25, 2005 order. In an order dated May 12, 2005, the Second Division denied the
motion.

On June 15, 2005, petitioner filed in this Court a petition for certiorari under Rule 65 of the Rules of Court
(docketed as G.R. No. 1628253) assailing the April 25 and May 12, 2005 orders of the Comelecs Second
Division for having been rendered with grave abuse of discretion.

Meanwhile, the Second Division continued with the proceedings and, following the submission of the parties
memoranda, considered EPC No. 2004-61 submitted for resolution.
In a resolution dated January 23, 2006, the Second Division then composed of only two sitting members,
namely, Presiding Commissioner Mehol Sadain (now retired) and Commissioner Florentino Tuason, Jr.
declared private respondent Imperial the winning candidate for mayor of Legaspi City and ordered petitioner
Rosal to vacate said office and turn it over peacefully to private respondent.
On January 30, 2006, petitioner filed a motion for reconsideration of the Second Divisions resolution. The
motion was denied by the Comelec en banc in a resolution dated May 29, 2006.[10] In due time, petitioner
came to this Court with a petition for certiorari and prohibition assailing the Comelec en banc resolution. The
case was docketed as G.R. No. 172741 and consolidated with G.R. No. 168253

ISSUE/S Whether or not the Second Division observed the proper procedure in revisiting the ballots

RULING/S
No. The procedure adopted by the Second Division was a complete inverse of the one outlined above and
was contrary to reason. There was complete arbitrariness on its part.

First, there was no indication at all that it ever considered the condition of the ballot boxes at the time they
were delivered to the Comelec for revision. We find this rather puzzling, considering that it had been
apprised of such information even before revision and even its own Rules of Procedure on election protests
requires the revision committee to "make a statement of the condition in which the ballot boxes and their
contents were found upon the opening of the same" - in recognition of the vital significance of such facts.

Second, it placed the burden of proving actual tampering of the ballots on petitioner herein (the protestee
below) notwithstanding private respondent's previous manifestation that most of the ballot boxes bore
"overt signs of tampering" and only 79 ballot boxes were found intact.

Third, instead of diligently examining whether the ballot boxes were preserved with such care as to preclude
any reasonable opportunity for tampering with their contents, the Second Division made the probative value
of the revised ballots dependent solely on whether spurious ballots were found among them. It failed to
recognize that, in view of reports that the ballot boxes had been tampered with and allegations that their
contents had been switched with genuine but invalid ballots, the question of whether the revised ballots
could be relied on as the same ones cast and counted during the elections could not obviously be settled by
an examination of the ballots themselves. Clearly, the time when these were deposited in the ballot boxes - a
detail of utmost importance - could not possibly have been determined by that means.

In an election contest, the ballots cast by the voters is the primary and best evidence of the intention of the
voters, but the burden of proof is on the contestor to show that the ballots have been preserved in the
manner provided by law and have not been tampered with, and the fact that the ballots have been in the
custody of the proper officers from the time of the canvass to the time of the recount is only prima facie and
not conclusive proof of their integrity.

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In an election contest the rule that as between the ballots and the canvass of them, the ballots control, has
no application where the ballots have been tampered with. The court must be sure that it has before it the
identical and unaltered ballots deposited by the voters before they become controlling as against the
certificate of the election officers of the result of the canvass.

Where an official count has been made, it is better evidence of who was elected than the ballots, unless he
who discredits the count shows affirmatively that the ballots have been preserved with a care which
precludes the opportunity of tampering and all suspicion of change, abstraction or substitution.

In an action to contest the right of a party to an office to which he has been declared elected, the returns of
the election boards should be received as prima facie true. In order to overcome this evidence by a recount
of the ballots cast at the election, the contestant must affirmatively prove that the ballots have not been
tampered with, and that they remained in the same condition as they were when delivered to the proper
custody by the judges of election. If it appears to the satisfaction of the court that the ballots have not been
tampered with, it should adopt the result as shown by the recount, and not as returned by the election
board.

Our election laws are not lacking in provisions for the safekeeping and preservation of the ballots. Among
these are Sections 160, 217, 219 and 220 of the Omnibus Election Code.

SECTION 160. Ballot boxes. - (a) There shall be in each polling place on the day of the voting a ballot box one
side of which shall be transparent which shall be set in a manner visible to the voting public containing two
compartments, namely, the compartment for valid ballots which is indicated by an interior cover painted
white and the compartment for spoiled ballots which is indicated by an interior cover painted red. The boxes
shall be uniform throughout the Philippines and shall be solidly constructed and shall be closed with three
different locks as well as three numbered security locks and such other safety devices as the Commission
may prescribe in such a way that they can not be opened except by means of three distinct keys and by
destroying such safety devices.

(b) In case of the destruction or disappearance of any ballot box on election day, the board of election
inspectors shall immediately report it to the city or municipal treasurer who shall furnish another box or
receptacle as equally adequate as possible. The election registrar shall report the incident and the delivery of
a new ballot box by the fastest means of communication on the same day to the Commission and to the
provincial election supervisor.

SECTION 217. Delivery of the ballot boxes, keys and election supplies and documents. - Upon the termination
of the counting of votes, the board of election inspectors shall place in the compartment for valid ballots, the
envelopes for used ballots hereinbefore referred to, the unused ballots, the tally board or sheet, a copy of
the election returns, and the minutes of its proceedings, and then shall lock the ballot box with three
padlocks and such safety devices as the Commission may prescribe. Immediately after the box is locked, the
three keys of the padlocks shall be placed in three separate envelopes and shall be sealed and signed by all
the members of the board of election inspectors. The authorized representatives of the Commission shall
forthwith take delivery of said envelopes, signing a receipt therefor, and deliver without delay one envelope
to the provincial treasurer, another to the provincial fiscal and the other to the provincial election
supervisor.

The ballot box, all supplies of the board of election inspectors and all pertinent papers and documents shall
immediately be delivered by the board of election inspectors and the watchers to the city or municipal
treasurer who shall keep his office open all night on the day of election if necessary for this purpose, and
shall provide the necessary facilities for said delivery at the expense of the city or municipality. The book of
voters shall be returned to the election registrar who shall keep it under his custody. The treasurer and the

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election registrar, as the case may be, shall on the day after the election require the members of the board
of election inspectors who failed to send the objects referred to herein to deliver the same to him
immediately and acknowledge receipt thereof in detail.

SECTION 219. Preservation of the ballot boxes, their keys and disposition of their contents. - (a) The
provincial election supervisor, the provincial treasurer and the provincial fiscal shall keep the envelope
containing the keys in their possession intact during the period of three months following the election. Upon
the lapse of this period, unless the Commission has ordered otherwise, the provincial election supervisor and
the provincial fiscal shall deliver to the provincial treasurer the envelope containing the keys under their
custody.

(b) The city and municipal treasurer shall keep the ballot boxes under their responsibility for three months
and stored unopened in a secure place, unless the Commission orders otherwise whenever said ballot boxes
are needed in any political exercise which might be called within the said period, provided these are not
involved in any election contest or official investigation, or the Commission or other competent authority
shall demand them sooner or shall order their preservation for a longer time in connection with any pending
contest or investigation. However, upon showing by any candidate that the boxes will be in danger of being
violated if kept in the possession of such officials, the Commission may order them kept by any other official
whom it may designate. Upon the lapse of said time and if there should be no order to the contrary, the
Commission may authorize the city and municipal treasurer in the presence of its representative to open the
boxes and burn their contents, except the copy of the minutes of the voting and the election returns
deposited therein which they shall take and keep.

(c) In case of calamity or fortuitous event such as fire, flood, storm, or other similar calamities which may
actually cause damage to the ballot boxes and/or their contents, the Commission may authorize the opening
of said ballot boxes to salvage the ballots and other contents by placing them in other ballot boxes, taking
such other precautionary measures as may be necessary to preserve such documents.

SECTION 220. Documents and articles omitted or erroneously placed inside the ballot box. - If after the
delivery of the keys of the ballot box to the proper authorities, the board of election inspectors shall discover
that some documents or articles required to be placed in the ballot box were not placed therein, the board
of election inspectors, instead of opening the ballot box in order to place therein said documents or articles,
shall deliver the same to the Commission or its duly authorized representatives. In no instance shall the
ballot box be reopened to place therein or take out therefrom any document or article except to retrieve
copies of the election returns which will be needed in any canvass and in such excepted instances, the
members of the board of election inspectors and watchers of the candidates shall be notified of the time and
place of the opening of said ballot box: Provided, however, That if there are other copies of the election
returns outside of the ballot box which can be used in canvass, such copies of the election returns shall be
used in said canvass and the opening of the ballot box to retrieve copies of the election returns placed
therein shall then be dispensed with.
Under the circumstances, the question as to who between the parties was duly elected to the office of
mayor cannot be settled without further proceedings in the Comelec. In keeping with the precepts laid
down in this decision, the Comelec must first ascertain, after due hearing, whether it has before it the
same ballots cast and counted in the elections.
NOTES

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