Case Digest: Varias v. COMELEC

G.R. No. 189078: February 11, 2010

MAYOR VIRGILIO P. VARIAS, Petitioner, v. COMMISSION ON ELECTIONS and JOSE "JOY" D. PENO, Respondents.

BRION, J.:


FACTS:

Varias and Peno were candidates for the position of Mayor of Alfonso, Cavite in the May 14, 2007 elections. Varias was proclaimed the winner after having a margin of 241 votes. Penano filed an election protest with the RTC Tagaytay and alleged that there are irregularities and misappreciations of votes and such were not counted correctly in favor of protestant.

The election protest proceeded in due course and the revision of the ballots was scheduled. After completion of the revision that saw the physical count of all the protested precincts, the Revision Committee submitted a Report showing that Peno garnered more votes than Varias.

The RTC rendered a decision in favor of Penano citing the case of Rosal v. COMELEC and ruled that the ballots can still be considered as the best evidence in determining the results of the election. It further ruled that as there was no evidence presented that the ballot box was not properly preserved or that it was molested after it was brought in the Municipal Hall, the court has no other option than to accept that the contents thereof remained the same while it was kept thereat. On appeal, First Division of COMELEC affirmed the RTC decision. Like the RTC, the COMELEC First Divisions count largely relied on the results of the revision of the ballots.

The COMELEC en banc denied Varias motion for reconsideration. Hence, this petition.

ISSUE: Whether or not COMELEC erred in in not requiring protestant to prove that the integrity of the ballot boxes was preserved

HELD: Yes.

Political Law- Rosal v. Commission on Elections (Rosal) instructively tells us how to appreciate revision of ballot results as against election returns in an electoral contest

The Rosal ruling, to be sure, does not involve issues merely related to the appreciation or calibration of evidence; its critical ruling is on the propriety of relying on the revision of ballot results instead of the election returns in the proclamation of a winning candidate. In deciding this issue, what it notably established was a critical guide in arriving at its conclusion the need to determine whether the court or the COMELEC looked at the correct considerations in making its ruling. As earlier adverted to, the courts or the COMELECs use of the wrong or irrelevant considerations in choosing between revision results and the election returns can taint its action with grave abuse of discretion.

We agree with Varias contentions, as our own consideration of the issues raised shows that the COMELEC indeed failed to follow Rosal. Specifically, we hold that Varias successfully discharged the burden of proving the likelihood of ballot tampering by presenting competent and reliable evidence facts and circumstances that are simply too obvious to ignore or gloss over. The COMELEC sadly looked at the wrong considerations, thereby acting in a manner not contemplated by law. Its actions clearly fit the "grave abuse of discretion" definition cited above.

Rosal, we preliminarily note, does not, as it should not, always require direct proof of tampering; even if the protestant has shown compliance with legal requirements for the preservation of ballots, the burden of evidence that shifts to the prostestee is not confined to proof of actual tampering, but extends to its likelihood. This cannot but be a reasonable rule, since ballot tampering and ballot substitution are not actsdone openly and without precaution for stealth; they are done clandestinely, and to require direct proof of actual tampering almost amounts to a requirement to do the impossible. Direct proof of actual tampering is therefore not the only acceptable evidence that negates the reliability of the ballots subjected to revision; other relevant considerations should be taken into account, most especially those resulting from the examination of physical evidence.

Correctly appreciated, the NBI Report is part of a chain of facts and circumstances that, when considered together, lead to the conclusion that there was, at the very least, the likelihood of ballot tampering. That there are superimpositions of names in the ballots or that various sets of ballots were written by one person indicate that the ballots had not been preserved in the manner Rosal mandated.

The COMELEC took these indicators very lightly and simply concluded that they do not conclusively prove the presence of an election fraud. The COMELEC, in short, considered as insignificant the finding that there had been superimpositions or that sets of ballots were written by one person. We add to these circumstances the NBIs expert finding that the ballots in each of the four precincts contained signatures different from those of their respective BEI Chairs.

We agree with Varias that, other than the NBI Report, there was a systematic pattern of post-election ballot tampering, which arguments Peno never substantially countered. As we stated above, the dramatic changes in the tally occurred only in four out of the 14 protested precincts, yet the shaving off of Varias lead and accompanying additions to Penos a classic case of dagdag-bawas in these four precincts were more than enough to alter the results. If votes for Peno were indeed erroneously and deliberately credited to Varias at the precinct level, we agree with Varias that an irregularity of this magnitude could not have escaped the attention of Penos poll watchers.

In sum, we find that the COMELEC gravely abused its discretion in declaring Peno, based on the results of the revision of ballots, the winner in the mayoralty contest for the Municipality of Alfonso, Cavite. The ballots, after proof of tampering, cannot be considered reflective of the will of the people of Alfonso.

GRANTED.

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