G.R. No. 182221. February 3, 2010.

THEMISTOCLES A. SAÑO, JR., petitioner, vs.

COMMISSION ON ELECTIONS, THE MUNICIPAL
BOARD OF CANVASSERS OF DULAG, LEYTE,
FERDINAND A. SERRANO, in his capacity as Acting
Chairman of the Municipal Board of Canvassers of Dulag,
Leyte, and MANUEL SIA QUE, respondents.

Election Law; Omnibus Election Code; Pre-Proclamation

Controversy; Definition of a Pre-Proclamation Controversy.—A
pre-proclamation controversy, as defined in Batas Pambansa (BP)
Blg. 881, otherwise known as the Omnibus Election Code of the
Philippines, is: any question pertaining to or affecting the
proceeding of the board of canvassers which may be raised by any
candidate or by any registered political party or coalition of
political parties before the board or directly with the Commission,
or any matter raised under Sections 233, 234, 235 and 236 in
relation to the preparation, transmission, receipt, custody and
appearance of the election returns.
Same; Same; Same; A pre-proclamation controversy is
summary in character.—It is settled that a pre-proclamation
controversy is summary in character; indeed, it is the policy of the
law that pre-proclamation controversies be promptly decided, so
as not to delay canvass and proclamation. The Board of
Canvassers (BOC) will not look into allegations of irregularity
that are not apparent on the face of ERs that appear otherwise
authentic and duly accomplished.
Same; Same; Same; Section 20 of Republic Act No. 7166 lays
down the procedure to be followed when election returns (ERs) are
contested before the Board of Canvassers (BOC); Compliance with
this procedure is mandatory.—Consistent with the summary
character and limited scope of a pre-proclamation controversy,
Section 20 of RA 7166 lays down the procedure to be followed
when ERs are contested before the BOC. Compliance with this
procedure is mandatory, so as to permit the BOC to resolve the
objections as quickly as possible.

 
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* EN BANC.

476

SPECIAL CIVIL ACTION in the Supreme Court.

Certiorari.
   The facts are stated in the opinion of the Court.
  Fornier & Fornier Law Firm for petitioner.
  Maria Donnah Guia C. Lerona-Camitan for respondent
Manuel Sia Que.

DEL CASTILLO, J.:

This case, with records spanning nearly 2,000 pages,
revolves around the simple question of what issues may be
properly alleged in a pre-proclamation controversy.
Petitioner has valiantly and passionately argued his case
and invoked every available ground to suspend and annul a
proclamation validly made. Unfortunately, argument is not
evidence; advocacy is not legitimacy. The mere invocation
of the grounds of a pre-proclamation controversy, without
more, will not justify the exclusion of election returns
which appear regular and authentic on their face.
This Petition for Certiorari filed pursuant to Rule 65 in
relation to Rule 64 of the Rules of Court, assails the
Resolution1 dated October 3, 2007 of the Commission on
Elections (COMELEC) First Division in SPC Case No. 07-
191, as well as the COMELEC En Banc’s Resolution2 dated
February 12, 2008.
Petitioner Themistocles A. Saño (Saño) was the official
candidate of Lakas Christian Muslim Democrats (LAKAS-
CMD) for Municipal Mayor of the Municipality of Dulag,
Leyte during the May 14, 2007 synchronized national and

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1  Rollo, pp. 63-71; penned by Commissioner Romeo A. Brawner and

concurred in by Commissioner Resurrecion Z. Borra.
2  Id., at pp. 72-76; penned by Commissioner Rene V. Sarmiento and
concurred in by Commissioners Romeo A. Brawner, Nicodemo T. Ferrer,
and Moslemen T. Macarambon.

477

local elections.3 Private respondent Manuel Sia Que (Que)

ran for the same position under the auspices of the Liberal
Party.
Petitioner’s Factual Allegations
Saño alleged that after the casting and counting of
votes, at about midnight of May 14, 2007, a man was seen
carrying a ballot box that was not locked; he then inserted
certain documents in said ballot box, took the aluminum
seal, sealed the box, and then turned it over to the
Reception Group. The election returns (ERs) allegedly
affected by this anomalous activity were ER Nos. 5301624,
5301603, 5301633, 5301602, and 5301668 (the contested
ERs) for Precinct Nos. 49-A, 31-A, 58-A, 30-A, and 90-A,
respectively (the questioned precincts).
During the canvassing at the Dulag Municipal Hall,
Saño sought to have the contested ERs excluded on the
following grounds: massive fraud, illegal proceedings, and
tampered/falsified and obviously manufactured returns. He
alleged that timely oral objections were made, and the
written Petition for Exclusion was filed with the Municipal
Board of Canvassers (MBOC)4 on May 15, 2007 at 6:50
p.m.5 together with affidavits prepared by his brother,
Tancredo A. Saño, and a certain Peter C. Alicando.6 Upon
the filing of the Petition for Exclusion, canvass of the
contested ERs was deferred.
Saño further alleged that in the morning of May 16,
2007, Lydia Camposano (Camposano), Election Officer for
Dulag, and Chairperson of the MBOC, was overheard
calling a certain “sir” over the telephone to ask for a ruling.
The telephone conversation was video recorded by Wilfredo
O. Lazar (Lazar),

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3 Id., at pp. 122-123.

4 Originally composed of Election Officer Lydia S. Camposano as
Chairperson, Mr. Enrique Cabaobao as Vice-Chairman, and Ms. Joquinita
P. Capili as Secretary.
5 Rollo, pp. 124-125.
6 Id., at pp. 126-130.

478

who executed an affidavit attesting to said occurrence.7

Saño, through counsel, then verbally moved for the
inhibition of Camposano as MBOC Chairman on the
ground of bias and for prejudgment of the election results.
Camposano allegedly acknowledged that she was talking to
her superior, Atty. Jose Nick Medros, Director III of Region
VIII and Chairman of the Leyte Provincial Board of
Canvassers, but declined to inhibit herself until she was
ordered to do so by her superiors. The canvassing
continued.
At around 9:00 p.m. of May 16, 2007, Saño filed his
written Petition for Inhibition together with the affidavit of
Lazar, reiterating his request for the inhibition of the
MBOC Chair.8 At midnight of May 16, 2007, Camposano
inhibited herself and declared the canvassing temporarily
adjourned.
At around 5:00 p.m. of May 17, 2007, Saño received a
copy of the COMELEC Regional Office’s Memorandum
designating Ferdinand Serrano (Serrano) as the Acting
Election Officer and MBOC Chairperson.9 Canvassing
resumed at about 6:00 p.m. of May 17, 2007, during which
Serrano verbally ruled that the contested ERs would be
opened. Serrano promised that this ruling would be put in
writing within 24 hours. Thereafter, petitioner, through
counsel, filed a Notice of Appeal at 5:00 a.m. of May 18,
200710 covering the contested ERs.
Finally, Saño claimed that instead of suspending the
canvass as required by law and the canvassing rules,
Serrano proceeded to hastily open and canvass the
contested ERs. Despite the filing of petitioner’s Notice of
Appeal, and the fact that the exclusion of the contested ERs
would materially

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7 Id., at p. 139.
8 Id., at pp. 136-138.
9 Id., at p. 141.
10 Id., at pp. 143-144.

479

affect the results of the election,11 the MBOC neither made

a written ruling nor elevated the appeal to the COMELEC
together with the MBOC’s report and records of the case.
Instead, the MBOC proclaimed Que as Municipal Mayor.
Private Respondent’s Factual Allegations
On the other hand, Que alleged that in the early
morning of May 15, 2007, the MBOC of Dulag, Leyte,
convened and started to canvass the ERs.12 At around 3:46
a.m. of May 15, 2007, the ER from Precinct No. 30-A was
temporarily set aside because of lack of data on the number
of registered voters, voters who actually voted, and excess
and rejected ballots. At the time that this ER was opened,
no objection to its inclusion was made.13
At around 6:15 a.m. of May 15, 2007, the Board of
Election Inspectors (BEI) from Precinct No. 30-A appeared
before the MBOC to complete the data. This time counsel
for Saño complained that the LAKAS-CMD copy had
imprints but BEI

_______________

11  The total number of votes cast for the petitioner was 8,915 votes
while the total number of votes cast for the private respondent was 9,092
votes. The total number of votes covered by the contested election returns
is 799 votes, of which 288 were credited to petitioner and 511 were
credited to the private respondent, as follows:

 Election Return  Precinct No.  Barangay No. of Contested

Votes

      Sano Que
5301602 30-A Arado 42 118
5301603 31-A Batug 47 123
5301624 49-A Camote 74   87
5301633 58-A Luan 72  86
5301668 90-A San Rafael    53    97

TOTAL      288  511

12  Minutes on the National, Provincial, and Local May 14, 2007
Elections of Dulag, Leyte, p. 2, Petitioner’s Annex “U” (hereinafter,
Minutes); Rollo, pp. 284.
13 Id.

480

Chairperson Ruel Congzon explained that the imprints

were due to the carbonized duplicate forms, and that the
copies given to the various political parties were borrowed
by the watchers so they could copy the election results. Not
finding the explanation satisfactory, counsel for petitioner
moved for the exclusion of said ER because of material
defects in the return. Camposano ruled that the ER from
Precinct No. 30-A would be set aside until the submission
of petitioner’s written objection.14
Meanwhile, at around 5:20 a.m. of May 15, 2007,
petitioner’s counsel verbally moved for the exclusion of the
ERs from Precinct Nos. 31-A, 49-A, and 58-A on the ground
that the ballot boxes were opened. The ERs were set aside
and the members of the BEI from said precincts were
summoned to appear before the MBOC.15
At around 6:30 p.m. of May 15, 2007, counsel for
petitioner likewise orally objected to the inclusion of the ER
from Precinct No. 90-A on the ground that it had been
tampered with and contained many erasures.16
At 6:50 p.m. of May 15, 2007, petitioner’s counsel
submitted a written Petition for Exclusion of the five
contested ERs.17 Canvass of the contested ERs was
deferred until the submission of Que’s comment. On May
16, 2007 at 10:49 a.m., Que submitted his written
Opposition.18
At around 9:17 p.m. of May 16, 2007, petitioner filed a
Petition for Inhibition of Camposano.19 Subsequently, at
12:30 a.m. of May 17, 2007, Camposano manifested that
she would inhibit herself as MBOC Chairperson.20 At 1:12
a.m. of May

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14 Id., at p. 3; Id., at p. 285.

15 Id.
16 Minutes, p. 4; Id., at p. 286.
17 Rollo, pp. 124-125.
18 Minutes, p. 4; Id., at p. 286.
19 Id., at p. 8; Id., at p. 290.
20 Id., at p. 9; Id., at p. 291.

481

17, 2007, canvassing was temporarily adjourned to await

the appointment of a new MBOC Chairperson.21
Canvassing resumed at 5:55 p.m. of May 17, 2007, when
the MBOC was reconvened with Serrano as Acting
Chairperson22 at which time, 25 precincts were not yet
canvassed. Serrano explained that he was required by law
to finish the canvass, and that the BEIs assigned to the
various questioned precincts would be summoned. He also
stated that “these allegations can’t be determined if we
won’t open the election returns x x x the BOC will ascertain
if the election return has been tampered [with]. We will see
if statistical data of ballots are filled out and [ask] the BEI
to correct the statistical data about the ballots which were
not correct.”23
While the ERs were being canvassed, counsel for
petitioner did not immediately manifest her intention to
appeal the ruling on the canvassing of ER in the questioned
precincts. The Minutes of the Canvass provide:

 Precinct     Minutes

90-A24 Precinct 90A of San Rafael completed the data
(contested)
Envelope serial No. 015884
Envelope Seal—0916966 (seal open)
ER seal—no seal
ER # 5301668
Valid Votes—164
Spoil—0
Excess—0
Rejected—0
Atty. Palabrica asked if the result will be tallied
separately.
Chairman Serrano: If it is a pre-proclamation

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21 Id., at p. 10; Id., at p. 292.

22 Id.
23 Id.
24 Id., at p. 12; Id., at p. 292.

482

 Precinct   Minutes
issue, then I will separate. I am inviting you to
  house rules 6 & 8. You are alleging massive fraud
and [tampering of ERs].
Atty. Palabrica: I did lump the reasons for this
objection. [I] am asking if it’s temporarily tallied.
Chairman Serrano: You alleged that the ER [was]
obviously manufactured.
Atty. Palabrica: The ER was already prepared and
that is why the ballot box was opened. The face of
the ER [is] okey.
Chairman Serrano: Such ground is covered by
regular protest.
Asked Lolita Ducanes, chairman and the third
member. Are these your signatures? Are these the
same election returns that you signed and placed
on the ballot box?
Lolita Ducanes: Yes, it’s my signature and they are
the election returns that we signed.
Atty Palabrica: Asked why the ballot box was
opened.Lolita Ducanes: It was opened in the
custody group.25
30-A26  At 2:13a.m. to 2:18 p.m. Precinct 30-A of Barangay
Arado was opened and canvassed.
Data
Envelope # 015811
Envelope Seal # 0915307 (seals sticking to
envelope)
ER seal #—no inner seal
ER # 5301602
# of valid ballots in compartment for valid ballots—
162
# of spoil[ed] ballots—0
# of excess ballots—0

_______________

25 Id.
26 Id., at p. 14; Id., at p. 296.

483

 Precinct    Minutes
  # of rejected ballots—0
Atty. Palabrica: had it noted that BEI of 30-A of
Brgy. Arado did not give a certificate of votes to the
Lakas watchers.
58-A27 At 2:21 a.m. to 2:40 a.m., Precinct 58-A of
Barangay Luan was opened and in good condition.
Data
Envelope # 015854
Envelope Seal # 0916088
ER inner seal #—0916087
ER # 5301633
# of valid ballots—162
# of spoiled ballots—0
# of excess ballots—0
# of rejected ballots—0
49-A28 At 2:40 a.m. to 2:48 a.m. Precinct 49A of Barangay
Camote was opened and canvassed.
Data
Envelope # 015803
Envelope Seal # 015803—envelope partly good
otherwise in good condition
ER seal #—0915855
ER # 5301624
# of valid ballots—167
# of spoil[ed] ballots—0#
of excess ballots—0
# of rejected ballots—0
31-A29 At 2:55 a.m. to 3:05 a.m., Precinct 31-A of
Barangay Batug was opened and
canvassed.Envelope Serial #—015808 (The
envelope is torn a little at the side otherwise in
good condition)
Envelope Seal # 0915327
ER seal #—0915326

_______________

27 Handwritten Notes of MBOC Secretary Joaquinita Capili; Records,

Vol. II, p. 45.
28 Minutes, p. 14, Rollo, p. 296.
29 Id., at pp. 14-15; Id., at pp. 310-311.

484

 Precinct   Minutes
  ER # 5301603
# of valid ballots—180
# of spoil[ed] ballots—0
# of excess ballots—0
# of rejected ballots—0
Chairman Serrano: Called the BEI members:
BEI Chairman—Fatima Ychon
Poll Clerk—Jeralyn Peque,
Third Member—Noel Lagunzad.
Chairman Serrano: Asked the BEI who prepared
the election return.
BEI members: Replied they were the one who
prepared the election return #5301603 of Brgy.
Batug.
At 3:00 a.m. of May 18, 2007, all ERs for the
municipality had been canvassed and the canvassing was
ordered terminated.30
COMELEC Proceedings
On May 28, 2007, petitioner filed a Petition for
Annulment of Proclamation and/or Proceedings of the
Municipal Board of Canvassers of Dulag, Leyte, before the
COMELEC, which was docketed as SPC Case No. 07-191
and raffled to the First Division.31 This petition was
amended on July 12, 2007 by impleading Que as a
necessary party.32 In the meantime, Que assumed his
position on June 30, 2007.
In his petition, Saño argued that the MBOC violated
Section 20, Republic Act (RA) No. 716633 and Section 39 of

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30 Id., at p. 15; Id., at p. 197.

31 Records, Vol. I, pp. 1-45.
32 Id., at pp. 55-93.
33  AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS
AND FOR ELECTORAL REFORMS, AUTHORIZING APPROPRIATIONS THEREFOR, AND FOR

OTHER PURPOSES (1991).

485

COMELEC Resolution No. 7859.34 Petitioner also sought to

exclude the contested ERs from the canvass, on the ground
that these were tampered with or obviously manufactured.
Finally, he also sought that he be declared and proclaimed,
after the exclusion of the contested ERs, as the winning
candidate for the position of Municipal Mayor of that
municipality.
Que filed his Answer to the petition on July 26, 2007.35
The MBOC, through Serrano, filed a separate Consolidated
Answer dated July 25, 2007.36
After hearing the case on August 1 and 13, 2007, the
COMELEC First Division directed the parties to submit
their respective memoranda.37 Thereafter, the COMELEC
issued its Resolution dated October 3, 2007 upholding the
proclamation of Que:38

“x x x A pre-proclamation controversy refers to any question

pertaining to or affecting the proceedings of the board of
canvassers which may be raised by any candidate or by any
registered political party or coalition of political parties before the
board or directly with the Commission, or any matter raised
under Sections 233, 234, 235, and 236 of the Omnibus Election
Code in relation to the preparation, transmission, receipt, custody
and appreciation of election returns. On the other hand, Section
243 of the Omnibus Election Code enumerates the issues that
may be raised in a pre-proclamation controversy, viz:

_______________

34 General Instructions for the Municipal/City/Provincial and District Board of

Canvassers in Connection with the May 14, 2007 National and Local Elections
(April 17, 2007).
35 Records, Vol. I, pp. 100-140.
36 Id., at pp. 152-180.
37 Both petitioner and private respondent filed their respective Memoranda on
August 28, 2007; Records, Vol. I, pp. 206-306. Acting Chairman Serrano filed his
Memorandum on September 3, 2007, Id., at pp. 345-363; MBOC Members Capili
and Cabaobao also filed a Memorandum on August 31, 2007, Id., at pp. 329-342.
38 Rollo, pp. 67-69.

486

1. Illegal composition or proceedings of the board of

canvassers;
2. The canvassed election returns are incomplete, contain
material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other authentic
copies thereof as mentioned in Sections 233, 234, 235 and 236 of
the Omnibus Election Code;
3. The election returns were prepared under duress, threats,
coercion, or intimidation, or they are obviously manufactured or
not authentic; and
4. When substitute or fraudulent returns in controverted
polling places were canvassed, the results of which materially
affected the standing of the aggrieved candidate.
It is likewise settled that the above enumeration of the grounds
that [many] be properly raised in a pre-proclamation controversy
is restrictive and exclusive.
In the case at bar, as borne out by the records, petitioner
anchors his petition for the exclusion of the election returns from
Precinct Nos. 49A, 31A, 58A, 31A, and 90A on the following
grounds: that the election returns were (1) obviously
manufactured; (2) tampered or falsified; [3] that there was
massive fraud; and [4] illegal proceedings. In support thereto,
petitioner attached the affidavits of his two (2) supporters, who
attested that they saw open ballot boxes from Precinct Nos. 49A,
31A, and 58A. A painstaking examination of the records, however,
shows that petitioner miserably failed to substantiate his
allegations that the election returns were obviously
manufactured, tampered with, that massive fraud attended the
preparation thereof, and that the proceedings of the board were
illegal.
There is an avalanche of jurisprudence which states that to
justify the exclusion of election returns, the allegations that the
election returns were obviously manufactured must be evident
from the face of the said documents. In the case at point, however,
a meticulous examination of the contested election returns copies
for the Commission, as well as the copy for the dominant majority
party indubitably showed that there is neither a compelling nor
cogent reason to warrant their exclusion.
In the same vein, petitioner failed not only to adduce evidence
but [also] to prove his allegation of massive fraud or illegality of
the

487

proceedings of the board. A contrario, the MBoC had done nothing

[amiss. Rather it tolerated] maximum x x x liberal interpretation
of election laws in favor of the petitioner for, despite the clear
absence of an issue cognizable as a pre-proclamation controversy
and non-compliance with the rule on submission on petitions or
objections before it, the board both under the chairmanship of
Camposano and Serrano [allowed] the petitioner x x x to submit
his petition. [It also addressed] the issues/concerns raised, as
shown in the Minutes of the Proceedings of the Board. The Board
is correct in not giving credence to petitioner’s petition for
exclusion [of the questioned returns] as it has been shown that
there are no valid grounds raised thereon which falls within the
ambit of Section 234 of the Election Code.”

Petitioner moved for reconsideration39 but the motion

was denied by the COMELEC En Banc on February 12,
2008.40
Hence, this petition.
The Parties’ Arguments
Petitioner insists that all five contested ERs were
written by only one person, and these ERs were
surreptitiously presented before the MBOC. Thus, he
argues that the issues raised before the MBOC, namely,
that the contested ERs were tampered with and/or
falsified, obviously manufactured, and subject of massive
fraud, are pre-proclamation controversies as defined in
Section 241 of the Omnibus Election Code and fall within
the contemplation of Section 243(b) of said Code. As such,
the contested ERs should have been excluded from the
canvass. Consequently, the MBOC’s proclamation of Que
violated Section 39 of Commonwealth Act No. 7859 and
Section 20 of RA 7166.
On the other hand, Que argues that the allegations
raised by petitioner on the contested ERs are not proper in
a pre-proclamation controversy; that petitioner failed to
substantiate his claim that the contested ERs were
obviously manufac-

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39 Id., at pp. 77-106.

40 Id., at pp. 72-76.

488

tured, tampered with, or falsified; and that petitioner failed

to follow the strict and mandatory procedure under Section
20 of RA 7166 and COMELEC Resolution No. 8969 for
manifesting an appeal.

Our Ruling

The petition is without merit.

A pre-proclamation controversy, as defined in Batas
Pambansa (BP) Blg. 881, otherwise known as the Omnibus
Election Code of the Philippines, is:

“any question pertaining to or affecting the proceeding of the

board of canvassers which may be raised by any candidate or by
any registered political party or coalition of political parties before
the board or directly with the Commission, or any matter raised
under Sections 233, 234, 235 and 236 in relation to the
preparation, transmission, receipt, custody and appearance of the
election returns.”41

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41  See also Sections 233-236 of the Omnibus Election Code, which
provide:
Sec. 233. When the election returns are delayed, lost or destroyed.—In
case its copy of the election returns is missing, the board of canvassers
shall, by messenger or otherwise, obtain such missing election returns
from the board of election inspectors concerned, or if said returns have
been lost or destroyed, the board of canvassers, upon prior authority of the
Commission, may use any of the authentic copies of said election returns
or a certified copy of said election returns issued by the Commission, and
forthwith direct its representative to investigate the case and immediately
report the matter to the Commission.
The board of canvassers, notwithstanding the fact that not all the
election returns have been received by it, may terminate the canvass and
proclaim the candidates elected on the basis of the available election
returns if the missing election returns will not affect the results of the
election.
Sec. 234. Material defects in the election returns.—If it should clearly
appear that some requisites in form or data had been omitted in the
election returns, the board of canvassers shall call for all the

489

Procedural Matters
It is settled that a pre-proclamation  controversy is sum-

_______________

members of the board of election inspectors concerned by the most

expeditious means, for the same board to effect the correction: Provided,
That in case of the omission in the election returns of the name of any
candidate and/or his corresponding votes, the board of canvassers shall
require the board of election inspectors concerned to complete the
necessary data in the election returns and affix therein their initials:
Provided, further, That if the votes omitted in the returns cannot be
ascertained by other means except by recounting the ballots, the
Commission, after satisfying itself that the identity and integrity of the
ballot box have not been violated, shall order the board of election
inspectors to open the ballot box, and, also after satisfying itself that the
integrity of the ballots therein has been duly preserved, order the board of
election inspectors to count the votes for the candidate whose votes have
been omitted with notice thereof to all candidates for the position involved
and thereafter complete the returns.

The right of a candidate to avail of this provision shall not be lost or

affected by the fact that an election protest is subsequently filed by any of
the candidates.
Sec. 235. When election returns appear to be tampered with or
falsified.—If the election returns submitted to the board of canvassers
appear to be tampered with, altered or falsified after they have left the
hands of the board of election inspectors, or otherwise not authentic, or
were prepared by the board of election inspectors under duress, force,
intimidation, or prepared by persons other than the member of the board
of election inspectors, the board of canvassers shall use the other copies of
said election returns and, if necessary, the copy inside the ballot box
which upon previous authority given by the Commission may be retrieved
in accordance with Section 220 hereof. If the other copies of the returns
are likewise tampered with, altered, falsified, not authentic, prepared
under duress, force, intimidation, or prepared by persons other than the
members of the board of election inspectors, the board of canvassers or
any candidate affected shall bring the matter to the attention of the
Commission. The Commission shall then, after giving notice to all

490
mary in character;42 indeed, it is the policy of the law that
pre-proclamation controversies be promptly decided, so as
not to delay canvass and proclamation.43 The Board of
Canvassers (BOC) will not look into allegations of
irregularity that are not apparent on the face of ERs that
appear otherwise authentic and duly accomplished.44
Consistent with the summary character and limited
scope of a pre-proclamation controversy, Section 20 of RA
7166 lays down the procedure to be followed when ERs are
contested before the BOC.45 Compliance with this
procedure is manda-

_______________

candidates concerned and after satisfying itself that nothing in the ballot
box indicate that its identity and integrity have been violated, order the
opening of the ballot box and, likewise after satisfying itself that the
integrity of the ballots therein has been duly preserved shall order the
board of election inspectors to recount the votes of the candidates affected
and prepare a new return which shall then be used by the board of
canvassers as basis of the canvass.

Sec. 236. Discrepancies in election returns.—In case it appears to the

board of canvassers that there exists discrepancies in the other authentic
copies of the election returns from a polling place or discrepancies in the
votes of any candidate in words and figures in the same return, and in
either case the difference affects the results of the election, the
Commission, upon motion of the board of canvassers or any candidate
affected and after due notice to all candidates concerned, shall proceed
summarily to determine whether the integrity of the ballot box had been
preserved, and once satisfied thereof shall order the opening of the ballot
box to recount the votes cast in the polling place solely for the purpose of
determining the true result of the count of votes of the candidates
concerned.
42 Chu v. Commission on Elections, 359 Phil. 509, 517; 319 SCRA 482,
489 (1999).
43  OMNIBUS ELECTION CODE, Section 246; Abayon v. Commission on
Elections, G.R. No. 181295, April 2, 2009, 583 SCRA 472.
44 Bandala v. Commission on Elections, 468 Phil. 411, 418; 424 SCRA
267 (2004).
45  SEC. 20. Procedure in the Disposition of Contested Election
Returns.

491

tory, so as to permit the BOC to resolve the objections as

quickly as possible. Thus, we held in Siquian, Jr. v.
Commis-
_______________

(a) Any candidate, political party or coalition of parties contesting the

inclusion or exclusion in the canvass of any election returns on any of the
grounds authorized under Article XX or Sections 234, 235 and 236 of
Article XIX of the Omnibus Election Code shall submit their oral
objection to the chairman of the board of canvassers at the time
the questioned return is presented for inclusion in the canvass.
Such objection shall be recorded in the minutes of the canvass.
(b) Upon receipt of any such objection, the board of canvassers
shall automatically defer the canvass of the contested returns and
shall proceed to canvass the returns which are not contested by any party.
(c) Simultaneous with the oral objection, the objecting party
shall also enter his objection in the form for written objections to
be prescribed by the Commission. Within twenty-four (24) hours from
and after the presentation of such an objection, the objecting party shall
submit the evidence in support of the objection, which shall be attached to
the form for written objections. Within the same period of twenty-four (24)
hours after presentation of the objection, any party may file a written and
verified opposition to the objection in the form also to be prescribed by the
Commission, attaching thereto supporting evidence, if any. The board
shall not entertain any objection or opposition unless reduced to writing in
the prescribed forms. The evidence attached to the objection or opposition,
submitted by the parties, shall be immediately and formally admitted into
the records of the board by the chairman affixing his signature at the back
of each and every page thereof.
(d) Upon receipt of the evidence, the board shall take up the
contested returns, consider the written objections thereto and
opposition, if any, and summarily and immediately rule thereon.
The board

492

sion on Elections46 that:

_______________

shall enter its ruling on the prescribed form and authenticate the
same by the signatures of its members.
(e) Any party adversely affected by the ruling of the board
shall immediately inform the board if he intends to appeal said
ruling. The board shall enter said information in the minutes of
the canvass, set aside the returns and proceed to consider the
other returns.
(f) After all the uncontested returns have been canvassed and the
contested returns ruled upon by it, the board shall suspend the canvass.
Within forty-eight (48) hours therefrom, any party adversely affected by
the ruling may file with the board a written and verified notice of appeal;
and within an unextendible period of five (5) days thereafter, an appeal
may be taken to the Commission.
(g) Immediately upon receipt of the notice of appeal, the board shall
make an appropriate report to the Commission, elevating therewith the
complete records and evidence submitted in the canvass, and furnishing
the parties with copies of the report.
(h) On the basis of the records and evidence elevated to it by the
board, the Commission shall decide summarily the appeal within seven (7)
days from receipt of said records and evidence. Any appeal brought before
the Commission on the ruling of the board, without the accomplished
forms and the evidence appended thereto shall be summarily dismissed.
The decision of the Commission shall be executory after the lapse of
seven (7) days from receipt thereof by the losing party.
(i) The board of canvassers shall not proclaim any candidate as
winner unless authorized by the Commission after the latter has ruled on
the objections brought to it on appeal by the losing party. Any
proclamation made in violation hereof shall be void ab initio, unless the
contested returns will not adversely affect the results of the election.
46 378 Phil 182; 320 SCRA 440 (1999).

493

“Compliance with the period set for objections on exclusion and

inclusion of election returns is mandatory. Otherwise, to allow
objections after the canvassing would be to open the floodgates to
schemes designed to delay the proclamation and frustrate the
electorate’s will by some candidates who feel that the only way to
fight for a lost cause is to delay the proclamation of the winner. It
should be noted that proceedings before the Board of Canvassers
is summary in nature which is why the law grants the parties a
short period to submit objections and the Board a short period to
rule on matters brought to them. x x x”47

Section 20 of RA 7166 and Section 36 of COMELEC

Resolution 2962 provide that any candidate may contest
the inclusion of an ER by making an oral objection at the
time the questioned return is submitted for canvass; the
objecting party shall also submit his objections in writing
simultaneously with the oral objections. The BOC shall
consider the written objections and opposition, if any, and
summarily rule on the petition for exclusion. Any party
adversely affected by such ruling must immediately inform
the BOC if he intends to appeal such ruling.
After the BOC rules on the contested returns and
canvasses all the uncontested returns, it shall suspend the
canvass. Any party adversely affected by the ruling has 48
hours to file a Notice of Appeal; the appeal shall be filed
within five days. Upon receipt of the notice of appeal, the
BOC will make its report to the COMELEC, and elevate
the records and evidence.
Moreover, pursuant to Section 235 of the Omnibus
Election Code, in cases where the ERs appear to have been
tampered with, altered or falsified, the COMELEC shall
examine the other copies of the questioned returns and, if
the other copies are likewise tampered with, altered,
falsified, or otherwise spurious, after having given notice to
all candidates and satisfied itself that the integrity of the
ballot box and of the ballots

_______________

47 Id., at pp. 185-186; p. 443.

494

therein have been duly preserved, shall order a recount of

the votes cast, prepare a new return which shall be used by
the BOC as basis for the canvass, and direct the
proclamation of the winner accordingly.
Based on the records of this case, we find that petitioner
failed to timely make his objections to the contested ERs.
The minutes of the proceedings before the MBOC reveal
that the contested ERs were presented for inclusion in the
canvass, and then orally objected to by the petitioner, at
the following times:

Precinct Time of Presentation for Grounds for

No. Canvass/ Objection
Oral Objection
30-A48 May 15, 2007; 6:15 a.m. Material defect
31-A49 May 15, 2007; 5:20 a.m. Ballot boxes open
49-A50 May 15, 2007; 5:20 a.m. Ballot boxes open
58-A51 May 15, 2007; 5:20 a.m. Ballot boxes open
90-A52 May 15, 2007; 6:30 p.m. Tampering; many
erasures

However, only one written petition for exclusion

was filed for the five contested ERs at 6:50 p.m. of May
15, 2007.53 Of course the law does not intend that election
lawyers submit their written objections at exactly the same
second as their oral manifestation; however, a lapse of
over 12 hours, long after the ERs have been presented for
canvass, is simply inexplicable and unacceptable.

_______________

48 Id.
49 Minutes, p. 3, Rollo, p. 285.
50 Id.
51 Id.
52 Id., at p. 4, Id., at p. 286.
53 Rollo, pp. 124-125.

495

It is also irregular that counsel for petitioner lumped all

the objections into one petition for exclusion. We recognize
that this is commonplace among election practitioners,
intended for the convenience of the advocate. However, in
cases like these, where each ground for exclusion is
separate and distinct, merging written objections leads to
unnecessary chaos in proceedings before the MBOC, and—
is here—as a disservice to the clients.
No evidence that the election returns
were falsified or tampered with.
While we are willing to overlook the procedural lapses
committed by the petitioner his manifestation and
subsequent Notice of Appeal do not serve to overturn the
assailed Resolutions. We find that the MBOC did not err in
proclaiming the private respondent, since the
unsubstantiated issues raised by the petitioner were not
proper for a pre-proclamation controversy. As we
explained, claims that contested ERs are obviously
manufactured or falsified must be evident from the face of
the said documents themselves.54 But counsel for petitioner
herself admitted that “on their face,” the ERs were “okey.”
Contrary to petitioner’s passionate remonstrations, there is
absolutely no indication that the contested ERs were
falsified or tampered with. As such, there was no valid
ground to delay the proclamation.
Petitioner anchors his claim of falsification and
tampering on the allegation that the genuine ERs were
replaced with manufactured returns, as evidenced by the
purported similarity in handwriting of the contested ERs.
Essentially, petitioner argues that the contested ERs
cannot be trusted because all five of the contested ERs
were prepared by one person; thus, no copy of the return
can be trusted and there must be a recount of the ballots.
He claims that—

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54 Dipatuan v. Commission on Elections, G.R. No. 86117, May 7, 1990,

185 SCRA 86, 93.

496
“the copies of the questioned election returns for both the
dominant majority party as well as submitted to COMELEC and
that of the dominant minority party, are duplicate copies of the
original which are equally tainted with irregularity.”

Unfortunately, petitioner has failed to substantiate

these allegations. On this, the COMELEC En Banc ruled:

x x x First, We cannot give due credence to the affidavits of Mr.

Peter Alicando and Mr. Tancredo Saño considering the infirm
nature of affidavits. Second, affiant Saño is the brother of herein
petitioner and his affidavit may most likely be considered as self-
serving.
In Salafranca v. Philamlife (Pamplona) Village Homeowners
Association, Inc., the Supreme Court held:
“It is settled that no undue importance should be given to a
sworn statement of affidavit as piece of evidence because,
being taken ex parte, an affidavit is almost always
incomplete and inaccurate.”
Nevertheless, the crux of the affidavits above-mentioned
pertains to the alleged opening of a ballot box by a man who
placed several documents therein. While a picture was attached to
show a person purportedly placing something inside a ballot box,
it is not safe to assume that some irregularity indeed took place.
What is worth noting is the fact that while petitioner claims
massive fraud and tampering, the pieces of evidence only show a
single ballot box being opened by an unknown person that is for
one (1) precinct alone and definitely not for five (5) precincts as
claimed by the petitioner. This notwithstanding, it is submitted
that the ground relied upon may best be addressed in a protest
case.
xxxx
Finally, an examination of the contested election returns will
show that the same appear to be regular and devoid of any signs
of tampering or that the same were manufactured. The allegation
that the same were written by one hand does not hold water. x x
x”55 (citations omitted)

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55 Rollo, pp. 73-75.

497

Absent any clear showing of grave abuse of discretion, this

Court is bound to rely on the findings and conclusions of
the COMELEC—the authority tasked by the Constitution
to administer and enforce election laws.56
At any rate, even if we take a second look at the facts,
petitioner has still not proven that the ERs were spurious,
falsified, or manufactured. Consider the following:
First, LAKAS-CMD was the dominant majority party in
2007.57 As such, its watchers would have been given a copy
of the ERs in the questioned precincts by the BEI itself. It
was never claimed that LAKAS-CMD never received its
copy of the ERs. It seems rather incredulous, therefore,
that ALL the ERs from the questioned precincts were
allegedly surreptitiously replaced.
Second, official watchers from the camps of both
LAKAS-CMD and petitioner had the opportunity to take
down the tally of votes and obtain a Certificate of Votes
from the BEI. Despite this, there has been no allegation
that the votes recorded in favor of petitioner were not the
true votes cast in the election.
Third, the members of the BEI from the questioned
precincts themselves affirmed that they prepared the
contested ERs.
Fourth, petitioner never deigned to present any proof on
his claim of similarity in handwriting—no expert opinions,
no testimony, no technical examination. Unfortunately, it
is not at all evident from the returns that these were
manufactured or fabricated.

_______________

56 CONSTITUTION, Art. IX-C, Sec. 2(1).

57 COMELEC Resolution No. 7877, In the Matter of the Accreditation
of the Dominant Majority Party, the Dominant Minority Party, and the
Other Six (6) Accredited Major Political Parties in the May 14, 2007
National and Local Elections (May 2, 2007).

498

Unlike a pre-proclamation controversy, the annulment

proceedings before the COMELEC were not summary in
character;58 petitioner had every opportunity to ventilate
his case and substantiate his allegations before the
Commission below. This notwithstanding, petitioner failed
to present any evidence sufficient to overcome the
presumption that the contested ERs were valid.
WHEREFORE, the Petition for Certiorari is hereby
DISMISSED for lack of merit. The Resolution of the
Commission on Elections First Division dated October 3,
2007 in SPC Case No. 07-191 dismissing petitioner’s
Petition for Annulment of Proclamation and/or Proceedings
of the Municipal Board of Canvassers of Dulag, Leyte, and
the Resolution of the Commission on Elections En Banc
dated February 12, 2008 denying petitioner’s motion for
reconsideration, are AFFIRMED.
SO ORDERED.

Puno (C.J.), Corona, Carpio-Morales, Velasco, Jr.,

Nachura, Leonardo-De Castro, Brion, Peralta, Bersamin,
Abad, Villarama, Jr., Perez and Mendoza, JJ., concur.

_______________

58 In Loong v. Commission on Elections, 326 Phil. 792-793; 257 SCRA

1, 23-24 (1996), we held that:
While, however, the COMELEC is restricted, in pre-proclamation
cases, to an examination of the election returns on their face and is
without jurisdiction to go beyond or behind them and investigate election
irregularities, the COMELEC is duty bound to investigate allegations of
fraud, terrorism, violence and other analogous causes in actions for
annulment of election results or for declaration of failure of elections, as
the Omnibus Election Code denominates the same. Thus, the COMELEC,
in the case of actions for annulment of election results or declaration of
failure of elections, may conduct technical examination of election
documents and compare and analyze voters’ signatures and fingerprints
in order to determine whether or not the elections had indeed been free,
honest and clean. Needless to say, a pre-proclamation controversy is not
the same as an action for annulment of election results or declaration of
failure of elections.

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