Вы находитесь на странице: 1из 18

Republic of the Philippines

Commission on Elections
Manila

MARIA FE GALAPON-RONDINA, Petitioner, SPR (AEL) No. 27-2013 -versusHON. MARIO O. QUINIT, in his capacity as Presiding Judge, Regional Trial Court- Branch 34, Tacloban City and CHARITA M. CHAN, Respondents. x-----------------------------------------------x

ANSWER TO THE PETITION


PRIVATE RESPONDENT, Mayor Charita M. Chan, by the undersigned Counsel, unto the Commission on Election (COMELEC herein after referred to as the Commission for brevity) most respectfully files this ANSWER in Compliance with the Order dated October 11, 2013 of the Commissions First Division. The Order was received by undersigned counsel on October 22, 2013. In answer to the petition, the private respondent raises the following facts and legal arguments. I. PETITIONER INCORRECTLY AND MISTAKENLY AVAILED OF THE REMEDY OF CERTIORARI 1. Petitioner, Maria Fe Galapon-Rondina, seeks to overturn the Order of Regional Trial Court (RTC) Branch 34 Tacloban City dated August 22, 2013. She prays for relief reversing and setting aside the same Order dismissing her election protest contesting the proclamation of respondent, Charita M. Chan. The dispositive portion is herein quoted:
WHEREFORE, premises considered this petition is hereby DISMISSED for: 1. Being insufficient in substance; and 2. The protestees evidence clearly established that there was no electoral fraud. SO ORDERED. Issued in chambers this 22nd day of August 2013 at Tacloban City.

It is the claim of Petitioner that the above Order was issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Thus, the reason for the filing of this petition for certiorari. 2. At the inception of this petition, it should well be necessary to characterize the Order in question. Apparently, it is a final judgment. It finally disposed of the case or it adjudicated the merits of the petitioners claims before the Court. It being so, the proper remedy of the petitioner is one provided for under Section 8, Rule 14 of Administrative Matter 10-41-SC. In fact, under the COMELEC Rules of Procedure, specifically, Rule 28, Section 2 resort to the remedy of certiorari can be availed of only when there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. This could not have been overlooked or missed by petitioner considering that the petition even refers to the same provisions of law by which she files this petition for certiorari. 3. The Order being questioned is admittedly a dismissal of the election protest. It cannot be denied that as mentioned, it is an adjudication on the merits of the case. The relief sought for in the petition even makes it clearer that it is a final judgment of the election protest. Thus, petitioner prays for its reversal and setting aside. For purposes of clarification, the petition asks for as stated in the prayer:
WHEREFORE, PREMISES CONSIDERED, it is respectfully prayed for to this Honorable Commission that, after notice and hearing, a Resolution be issued REVERSING AND SETTING ASIDE, the assailed order dated August 22,2013.

The above prayer apparently admits the character of the Order to be a disposal of the election protest and being so, a final judgment. Thus, petitioners pleas for reversal and/ or its setting aside of the same Order through this petition. A judgement or order is considered final if the order disposes of the action or proceeding completely, or terminates a particular stage of the same action.1 Case law has conveniently demarcated the line between a final judgement or order and an interlocutory one on the basis of the disposition made. A judgement or order is considered final if the order disposes of the action or proceeding completely or terminates a particular stage of the same action; in such case, the remedy available to an aggrieved party is appeal. If the order or resolution however, merely resolves incidental matters and leaves something more to be done to resolve the merits of the case, the order is interlocutory and aggrieved partys remedy is a petition for certiorari; under Rule 65 .2The Order
1

MA. CARMINIA C. CALDERON represented by her Attorney-In Fact, Marycris V. Baldevia, Petitioner, versus, JOSE ANTONIO F. ROXAS and COURT OF APPEALS, Respondents, G.R. No. 185595, January 9, 2013 Republic of the Philippines, petitioner, versus, Sandiganbayan (Fourth Division), Jose L. Africa (substituted by his heirs), Manuel H. Nieto, Jr., Ferdinand F. Marcos.(substituted by her Heirs),

being questioned is a final order that terminated entirely the proceedings or the election contest. There is nothing else to be done but to enforce by execution what has been determined by the Court. Thus, the petition is patently erroneous and is dismissible on this account. 4. The reference made by the petitioner in paragraph (2) of the petition to Rule 65 of the Rules of Court is misleading and patently erroneous. Rather, the questioned Decision is proper subject of appeal and not petition for certiorari under Rule 65 of the Rules of Procedure. Section 1, Rule 41 of the Rules of Procedure as amended reads:
Section 1. Subject of Appeal. An appeal maybe taken from a judgement or final order that completely disposes of the case or a particular matter therein when ordered by these Rules to be appealable. Xxx In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. (n)

As mentioned in the immediately preceding paragraph, the order being questioned is a final order that disposed of the case. It is not an interlocutory order which is the proper subject of a petition for certiorari. II. UNDER THE OBTAINING CIRCUMSTANCES, PETITIONER IS BARRED FROM FILING PETITION FOR CERTIORARI 5. Under the circumstances and applicable laws, the petitioner is precluded from filing the petition for certiorari. The requirement for the filing of the petition for certiorari has not been satisfied by the petitioner. In all applicable laws, in fact cited by the petitioner, petition for certiorari is available only if there is no appeal, nor plain, adequate speedy remedy available upon the petitioner. The following provisions of law mentioned by the petitioner provide:
Section 2. Rule 28 of the COMELEC Rules of Procedure. Petition for Certiorari or Prohibition. When any court or judge hearing election cases has acted without or in excess of its or his jurisdiction or with grave abuse of discretion and there is no appeal ,nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a petition for certiorari or prohibition with the Commission alleging the facts with
Imelda R. Marcos, Ferdinand R. Marcos, Jr., Juan Ponce Enrile, and Potenciano Ilusorio (substituted by heirs), respondent, G.R. No. 152375, December 16, 2011

certainty and praying that judgement be rendered annulling or modifying the proceedings, as the law requires, or of such court or juries or commanding it or him to desist from further proceedings, as the law requires, of such court or judge or commending it or him...

and
Section 1. Rule 65 of the Rules of Procedure. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46. (1a)

6. It is a requirement in order that the petition be given due course that there is no appeal nor, nor any plain, speedy and adequate remedy in the ordinary course of law. The following are considered requisites for the issuance of writ of certiorari:3 (a) that it is directed against a tribunal, board or officer exercising judicial or quasi judicial function; (b) that such tribunal, board or officer has acted without or in excess of jurisdiction with grave abuse of direction; (c) that there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law; (d) that the petition is verified and must allege facts with certainty; (e) must be accompanied with certified true copies of the judgement or order sought to be annulled and copies of all pleadings and documents relevant and pertinent there to. Contrary to the claim of the petitioner in paragraph (4) of the petition, the remedy of appeal which is an adequate remedy in the course of law was available to the petitioner. However, the petitioner has not availed of the same and has not even offered any explanation why it was not resorted to instead of the special civil action of petition for certiorari. The petitioner has even mentioned the rule which provides adequate remedy of appeal, A.M. No. 10-4-1-SC (2010 Rules of Procedure in Election Contests before the Courts involving Elective Municipal Officials) and A.M. No. 07-4-15-SC (Rules of Procedure in Election Contests Involving Elective Municipal and

J. Oscar M. Herrera, Remedial Law Volume III 1999 Edition pp.210-211

Barangay Officials). The provision specifying the proper adequate and available remedy reads as follows:
Section 8. Rule 14, A.M. 10-4-1-SC. Appeal. An aggrieved party may appeal the decision to the COMELEC within five (5) days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse party who is not represented by counsel.

7. The existence of the remedy of appeal is a bar against the herein petition. It is adequate and sufficient remedy; in fact it could have been availed by the petitioner within five (5) days from the notice of the questioned decision. Whereas, the petitioner waited for more than a month just to file this petition. The claim of the petitioner of inadequacy of remedy is totally unsubstantiated. Petitioner is represented by counsels and they received the questioned decision on August 22, 2013 as may be verified on the certified copy of the questioned Decision. The availment by the petitioner of Certiorari when appeal is available may result in the judgement of the trial court becoming final and executory.4 What rather appears from the circumstances is the negligence and failure on the part of the petitioner to avail of the proper remedy after receiving the questioned Decision. Allowing and giving due course to the petition for certiorari is contrary to the rules of procedure and surely transgresses the settled jurisprudence on the matter. This is an addition to the absence of merit of the petition and want of indubitable ground to reverse and/or set aside the Order/ Decision of the Court. Jurisprudence abounds where the right to appeal is lost through petitioners negligence, certiorari will not lie as a substitute for an appeal.5 8. Petition for certiorari will not lie as a substitute for the last remedy of appeal. As aforementioned and cited, the rules provide that appeal maybe taken by an aggrieved party from the notice of Decision. Petitioners counsel received copy of the Decision on August 22, 2013 or maybe shown by the signature on the last page of the questioned Decision. From the date of notice of the adverse decision petitioner had five (5) days to file an appeal, if she is so minded. However, no appeal was ever made. As a consequence thereof, the Clerk of Court has even issued a Certificate of Finality of the Order/ Decision dismissing the election protest. It is attached as Annex 1. This is just a logical consequence considering the absence of any appeal such that after the lapse of five (5) days the decision become final and executory. The petitioner had until August 27, 2013 to file an appeal through
4

Chiquillo vs. Asuncion, 83 SCRA 248; Peza vs Alikpala,160 SCRA 31, April 5,1988; LLido vs Marquez, G.R. No. L-370 79, 166 SCRA 61 Caldito vs Segundo,117 SCRA 573; Belen vs. Court of Appeals, 160 SCRA 291; Cobete vs Sundiam, 123 SCRA 95; Dillena vs Court of Appeals, 163 SCRA 630, Doria vs Luna, G.R.No. L-47 270, 160 SCRA 312; Vide People vs Court of Appeals 199 SCRA 539, Fajardo vs Bautista, 232 SCRA 291 Mercado vs. Court of Appeals

filing a notice of appeal as expressly mentioned in the A.M.No.10-4-1S-SC. Petitioners failure and negligence cannot be substituted by an extraordinary remedy of application for the issuance of writ of certiorari. Irrespective of the merits of the judgement and/or dismissal no one can consider the same as ineffective. The judgement having been issued by court which has jurisdiction, it produced legal effects. Failure of petitioner to appeal the same judgement, it became final and executory. It cannot, after the same became executory, now be assailed even by petition for certiorari. Allowing the partition will have serious implications on the stability of the rulings of the court and also the constituents of the municipality will continue to be confused. The ruling and/or decision which were not appealed bounds not only the respondent but the petitioner in this case. This issue is settled in so many decisions of the Supreme Court. A judgement that becomes final and executory cannot be resurrected by a petition for certiorari. Certiorari, by its very nature, is proper only when appeal is not available to the aggrieved party; the remedies of appeal and certiorari are mutually exclusive, not alternate or successive.6 It cannot be substitute for a lost appeal, especially if ones own negligence or error in ones choice of remedy occasioned such loss or lapse.7 III. THE ISSUES BEING RAISED BY PETITIONER IS PROPER ON APPEAL BUT NOT IN PETITION FOR CERTIORARI 9. The issue being raised by petitioner is proper for an appeal but not on Certiorari. The proper issue for petition for Certiorari is jurisdiction and not on the exercise of jurisdiction. Assuming, without conceding, that the petition is properly filed under Rule 65 or Rule 28, Section 2 of the COMELEC Rules of Procedure, still it has no merit. It should be noted even at the inception that the issue being raised by the petitioner are questions on the appreciation by the court of the merits of the case. Review alone of the issues raised will verily show that it questions the wisdom of the judgment and/or in not applying the supposed applicable jurisprudence or law on the matter. In sum, it merely imputes errors on the judgment. Enumerations of the issues will cleanly present the erroneous remedy availed of by petitioner: [1] the petition questions the dismissal of the election protest; [2] questions the finding that the election protest is insufficient in content or substance; [3] questions the non- applicability of the doctrine in Miguel vs. COMELEC8; and [4] questions the finding that as a condition precedent to the finding of electoral frauds, anomalies and irregularities is the filing of protest by poll watchers. Common to issues or errors imputed is that they all points to
6

7 8

Isabel n. Guzman versus Aniano N. Guzman and Primitiva G. Montealto, G.R. No. 172588 citing PAGCOR vs. CA, G.R. No. 185668, December 13, 2011; and Catindia vs Vda. De Meneses, G.R.Nos.165 851 and 168875, February 2, 2011 Ibid., citing Teh vs Tan, G.R. Nos. 181956, November 22,2010 335 SCRA 172

exercise of jurisdiction by the court or the determination by the court of the sufficiency of the election protest filed. These are all questions on the propriety of the ruling by the court which is not the proper issue in a petition for certiorari. It should be noted that as a legal recourse, Certiorari is a limited form of review9. It is restricted to resolving errors of jurisdiction and grave abuse of discretion not errors of judgement10. Indeed as long as the lower Courts acted within their jurisdiction, alleged errors committed in this exercise of their discretion will amount to mere errors of judgement correctible by an appeal or petition for review.11 The matters being raised in this petition points to the courts appreciation of facts and the application of the law. It does not involve the Courts jurisdiction but merely allegation of erroneous exercise of judgment. It should well be pointed out that the petitioner submitted to the jurisdiction of the court when she filed her election protest. She did not question the jurisdiction of the Court in this petition for certiorari. Her questions rather have reference to the appreciation of facts and applicable law which is proper on appeal. 10. In the determination of this petition, a distinction should be made between jurisdiction and exercise of jurisdiction. Jurisdiction is the authority to hear and determine a cause and the exercise of that jurisdiction is the decision on all other questions arising in the case, what certiorari should present is an error in jurisdiction and not an error in the exercise thereof.12 Errors which the court may commit in the exercise of its jurisdiction are mere errors of judgment which are reviewable by appeal. The order that the petitions really wanted to obtain relief from was the order granting the respondents motion to dismiss. The fact that the order granting the motion to dismiss was a final order for thereby completely disposing of the case, leaving nothing more for the trial court to do in the action, truly called for an appeal, instead of certiorari as the correct remedy.13 IV. PETITION FOR CERTIORARI IS AN EXTRAORDINARY REMEDY WHICH IS NEVER DEMANDABLE AS A MATTER OF RIGHT

10

11 12 13

Supra., Guzman vs. Guzman citing Home Development Mutual Fund (HDMF) vs. Sec, G.R. No. 170292, June 22, 2011 Supra., Guzman vs. Guzman citing Pilipino Telephone Corp. vs. Radio Marine and Catindia vs. Vda De Meneses, G.R. Nos. 165851 and 168875, February 2, 2011 Supra. Guzman vs. Guzman Supra., J. Oscar M. Herrera, pp. 218-219 Heirs of Spouses Teofilo M. Reterta and Elisa Reterta, namely: Eduardo M. Reterta, Consuelo M. Reterta, and Avelino M. Reterta, petitioners, vs. Spouses Lorenzo Mores and Virginia Copes, respondents, G.R.No.159941, Aug.17, 2011.

11. It should be emphasized that a writ of certiorari is an extra ordinary prerogative writ that is never demandable as a matter of right. 14 It cannot just be issued by mere allegation of public interest or other exceptions being raised by the petitioner as an excuse for not filing a motion for reconsideration as a condition precedent for the filing of petition for certiorari. Filing of erroneous remedy is never excusable. In the same ruling it categorically pronounced that the Court cannot tolerate ignorance of the law on appeals. It has in fact reproached litigants who have sought to delegate to this Court the task of determining under which rule their petitions should fall.15 The Supreme Court further reminded petitioner that the invocation of substantial justice is not a magic potion that will automatically compel this Court to set aside technical rules.16 This principle is especially true when a litigant, as in the present case, shows predilection for utterly disregarding the Rule. Much so, that herein petitioner admittedly allege of being aware of the general rule. However, she failed to comply with the said rule. Much more aggravating is her failure to explain the reason why she failed to appeal the Decision of the Court. It is now very unjust and improper for petitioner to invoke the allegedly well-defined exceptions enumerated in paragraph (3) of the petition. Review of the welldefined exceptions will not even suit to the circumstances of this case as when she alleged urgency but as repeatedly emphasized in this answer, it could not be explained why she has not availed the proper remedy which was readily available on receipt of the questioned Decision. V THE ORDER OF DISMISSAL IS ALREADY FINAL AND EXECUTORY AFTER LAPSE OF FIVE DAYS THERE BEING NO APPEAL 12. Paragraph (4) of the petition is a falsity. On the contrary, the cited A. M. 10-4-1-SC expressly provides for a remedy to a party should she be aggrieved of the final judgment. This is a provision of law which can readily be verified. Petitioner rather has belatedly filed an appeal and/ or failed to avail of the proper remedy. As a consequence, the questioned decision became final and executory. 13. Allegations in paragraph (5), (6) and (7) of the petition as to the parties to this case are admitted. It should also be pointed out for purposes of clarification, petitioner in this case is Maria Fe Galapon-Rondina and not Presiding Judge Quinit as referred to in paragraph (4) and also not Madlangsakay as mentioned in paragraph (5).

14

15 16

Ebrencio F. Indoyon, Jr. Municipal Treasurer, Lingia, Surigao del Sur, petitioner, vs. Court of Appeals, 22nd Division, Cagayan de Oro, Respondent, G.R.No. 193706, March 12, 2013 citing Angeles vs. Guitterez, G.R.Nos.189161 and 189173, March 12,2012 Ibid., Indoyon vs. Court of Appeals citing Ybanez vs Court of Appeals, 323 Phil 643 Ibid.

14. Paragraphs (8), (9), (10), (11), (12), (13), (14) are all matters on record of this case. The summation on paragraph (12) of the petition on the respondents motion is inaccurate and appears to have been obscured purposely. Petitioner prays for the recount and/or revision of the ballots on the May 13, 2013 Elections in the municipality of Babatngon. It is her claim that there were One Thousand Four Hundred Twenty Five (1,425) ballots to her favor which were not counted by the Precinct count Optical Scan (PCOS) Machine during the elections. On this allegation, she bases her prayer for the revision of ballots. There were no allegations as to fraud or deceit committed by respondent on the PCOS machines. The generality of the claim as well as its falsity is readily discernible. The Answer to the election protest detailed the reasons why there can be no revision on the basis of false allegations. The petitioner was given a chance to summarily present evidence to prove the allegation and the basis of her claim. She utterly failed to substantiate and support the same. Review of the proceedings will confirm this failure on the part of the Petitioner. In sum, she has by her allegations alone failed to rebut the presumptions enumerated under the Rules. In addition, she likewise failed to specify the fraud committed resulting to non-counting of 1,425 votes to her favor. 15. Paragraph (15) is another falsity on the petition. It is erroneous for petitioner to claim that there was no ruling on the motion for reconsideration on the issuance of precautionary order. The counsels representing the petitioner could very well attest to this fact that an Order on the Motion was issued by the Court. 16. Paragraph (16) of the petition is inaccurate and thus, misleading. At the inception of this case and in fact as maybe verified on the respondents answer, it raises affirmative defenses that are sufficient to dismiss the protest. Protestee questions the sufficiency of the protest in so far as it claims that 1,425 votes were not credited to her favour which is manifestly false and improbable. Giving due course to the protest will undermine the electoral process and the election of duly constituted officials by false claims. This is an alarming matter not only for the duly elected officials so to judicial system. It is just so, that the affirmative defense of the respondent be treated before any revision is conducted. A.M. No. 10-4-1-SC even allows the Court to conduct or hold a preliminary hearing on the grounds so pleaded. This is express provided for in Sec. 2, Rule 6 of A.M. No. 10-4-1SC.17 Thus, the insinuation by petitioner of procedural lapse has no basis in law.

17

Sec. 2, Rule 6, A.M. No. 10-4-1-SC. Grounds to Dismiss be Set up in the Answer All grounds to dismiss an election protest or petition for quo warranto must be set up or pleaded as affirmative or special defenses. Defenses not raised are deemed waived. The court may, at its discretion, hold preliminary hearing on the grounds so pleaded.

17. Paragraphs (17), (18) and (19) also lack the specific details in order to have a proper perspective on the issues before the Court. Review of the presentation of evidence on summary on the issue of the affirmative defenses indeed confirms the fact that there is no factual basis to the claim of petitioner that there were 1,425 votes that were not counted to her favour. In fact, the witnesses for the petitioner themselves could not give on account of supposed missing votes that were not counted. It has been the position of the respondent from the very beginning that the claim of petitioner is improbable and utterly falsity. The protestants submitted Review of Facts and the law are erroneous conclusions and misapplication of the law. Further, it is a prohibited pleading.18 In effect, it has no bearing at all. 18. The claim of surprise in paragraph (20) of the petition is untrue. Petitioner knew it was a matter of course that election protest will be dismissed. She did not even appeal the Order dismissing the election protest on insufficiency in substance or content. A recount of the ballots cannot just be based on false facts or false claims. Much so, to be based on improbable and generalized claim of non-counting of 1,425 votes to her favor. The protestant has not even rebutted the presumptions under the law. 19. On the issues being raised by the petitioner, they are not jurisdictional issues. Only questions concerning jurisdiction can be raised in petitions for certiorari. Rather, the issues being raised are proper on appeal. As a consequence, these cannot be taken cognizance of by the Commission. This is a jurisdictional rule that is strictly adhered to otherwise matters that has been ruled upon and decided would forever be litigated. These issues resolved by the Court cannot now in a Petition for Certiorari be reviewed again. The Decision of the Court is a bar from any further litigation on the matter. Should there be any fault, it should fall upon the petitioner who inexcusably failed to file appeal. 20. Paragraph (23) of the petition admits that the Court ruling is on the merits of the case. As such, it is an admission that the same ruling is an adjudication of the case and final decision disposing the case. Thus, again the proper remedy is to appeal the Decision in accordance with Rule 14, Section 8 of A.M. No. 10-4-1-SC.19 Further, the Court has discretion to rule on the compliance of sufficiency in form and substance as provided for
18

19

Section 1, Rule 6, A.M. No. 10-4-1-SC. Prohibited pleadings and motions. The following pleadings, motions or petitions shall not be allowed in the cases covered by these Rules: (a) Motion to dismiss the petition, except on the ground of lack of jurisdiction over the subject matter; (b) Motion for a bill of particulars; (c) Demurrer to evidence; (d) Motion for new trial, or for the reconsideration of a judgment, or for reopening of trial; (e) Petition for relief from judgment; (f) Motion for extension of time to file pleadings, affidavits or other papers; (g) Memoranda, except as provided under Section 7, Rule 13 of these Rules; (h) Motion to declare the protestee or the respondent in default; (i) Dilatory motion for postponements; (j) Motion for the inhibition of the presiding judge, except on clearly valid grounds; (k) Reply or rejoinder; and (l) Third-party complaint. Section 8, Rule 14, A.M. No. 10-4-1-SC. Appeal. An aggrieved party may appeal the decision to the COMELEC within five (5) days after promulgation by filing a notice of appeal with the Court that rendered decision

10

under the cited rules. In accord with it, the Court may summarily dismiss and even motu proprio an election protest under Sec. 12 of Rule 220 for insufficiency in form and content as required under Section 10, Rule 2 of the same Administrative Matter by the Supreme Court.21 The election protest failed to pass the test of sufficiency in the specification of the fraud, anomalies committed that resulted to the non-counting of 1,425 votes in favor of the petitioner. The falsity of the claim needs no further discussion. Under the foregoing scenario there is no abuse in the exercise of discretion. The Court cannot be faulted for the dismissal of the case considering the improbable allegation of the protestant. The alleged difference was not even attributed to any fraud or anomaly. The explanation on the difference is even explained in the guidelines for the conduct of May 13, 2013 elections. There is a threshold that is required to be met in order in order to be considered a vote. In addition thereto, the circumstance of over-voting for a particular position and non-voting for any of the candidate on a particular contested position will result to no vote for any of the candidate. This is not an anomaly which can be basis of an election protest. Even then, the petitioner and protestant has not alleged any specific fraud that caused the noncrediting of votes to her favour. On this, the protest was correctly dismissed. 21. Paragraph (29) of the Petition is an erroneous conclusion. Section 10, Rule 2 of A.M. No. 10-4-1-SC expressly requires: (a) specification of acts or omissions complained of amounting to electoral fraud, anomaly or irregularity, and (b) the location of the precinct where acts complained of were committed. The provision does not need interpretation as they are glaringly clear and unmistakable. Mere allegation of the discrepancy without specific allegation of fraud committed in each precinct contested will not suffice to make an election protest. Election protest ever since had been grounded on allegations of fraud and/or irregularity that resulted to the inaccurate or fraudulent result in the elections. With A.M. No. 10-4-1-SC, the requirement for sufficiency of the protest is a necessary consequence of the automated system of elections. Allegation of mere discrepancy will not
20

21

A.M. No. 10-4-1-SC, Rule 2, Section 12 Summary dismissal of election contests. The court shall summarily dismiss, motu proporio, 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 in these Rules; (d) The filling fee is not paid within the period for filling 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 filling of the protest. Ibid., Section 10. Contests of the protest or petition. (a) An election protest or petition for quo warranto shall commonly and specifically state the following facts: (i) the position involved; (ii) the date of proclamation; and (iii) the number of votes credited to the parties per the proclamation. (b) A quo warranto petition shall also state: (i) if the petitioner is not a candidate for the same municipal position, the facts giving the petitioner standing to file the petition; (ii) the qualifications for the municipal office and the disqualifications prescrib ed by law; (iii) the petitioners cited ground for ineligibility or the specific acts of disloyalty to the Republic of the Philippines. (c) An election protest shall also state: (i) that 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 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.

11

suffice. In fact, on the case cited by the petitioner there are allegations of fraud and the same are specific. Consequently, the Court correctly ordered the revision. From the inception, respondent had been begging for the basis of recount and asking for what fraud were committed that consequently resulted to non-crediting of votes for petitioner. It cannot be considered as fraud, irregularity or anomaly alone. There should be specific acts committed that is the cause for such discrepancy. Otherwise, there will be no need for the presumptions that under the Rules.22 Even the watchers for the protestant certified the correctness of the data generated by the PCOS machine and the consolidation computers. It is incumbent upon the protestant to allege acts in violation of the law that resulted to the noncrediting of votes for the protestant. Otherwise, the stability of the electoral process would be undermined. It would be a disastrous precedent to give due course to the position of the petitioner. 22. Paragraph (35) of the petition is exactly what the Rules apparently intends to avoid, the filing of unsubstantiated election protest. Revision of ballots requires grounds in order to proceed. It is not a hollow procedure that can be undertaken by mere generalization. Much so, when the guidelines itself provides for the explanation why there is difference. Opening of the ballots in order to revise and examine the same is not a matter of course. It requires sufficient allegation of fraud which is even more demanded to be specific as to the precinct. This is what is wanting or absent in the election protest of the petitioner. 23. Paragraph (36) of the petition twists the allegation of the election protest itself to make an issue. It is the petitioner who alleges that 1,425 votes were not credited to her favour. It is not that the Court requires how many from the 1,425 votes were for the protestant. What the Court requires is the specific allegation that explains why there were 1,425 votes that were not credited in favour of the petitioner and what acts were committed that caused the same. Paragraph (37) of the same Petition likewise misleads the
22

Section 6, Rule 13, A.M. No. 10-4-1-SC. Disputable Presumptions. The following are considered as established facts, unless contradicted and overcome by other evidence. (a) On the election procedure: (i) The election of candidates was held on the date and at the time set and in the polling place determined by the Commission on Elections; (ii) The Boards of Election Inspectors were duly constituted and organized; (iii) Political parties and candidates were duly represented by pollwatchers; (iv) Pollwatchers were able to perform their functions; (v) The Minutes of Voting and Counting contains all the incidents that transpired before the Board of Election Inspectors; and (vi) The Audit Log contains the list of all activities performed by the PCOS machines from the time it was powered on until it was turned off. (b) On election paraphernalia: (i) Ballots and election returns that bear the security markings and features prescribed by the Commission on Elections are genuine; (ii) The data and information supplied by the members of the Boards of Election Inspectors in the accountable forms are true and correct; and (iii) The allocation, packing and distribution of election documents or paraphernalia were properly and timely done; (iv) The PCOS and consolidation machines and the data storage devices are all in order, and the data generated reflect the activities entered in these electronic machines and devices. (c) On appreciation of ballots: (i) A ballot with appropriate security markings is valid; (ii) The ballot reflects the intent of the voter; (iii) The ballot was properly accomplished; (iv) A voter personally prepared one ballot, excep t in the case of assistors; and (v) The exercise of ones right to vote was voluntary and free.

12

Commission. What is rather impossible is the allegation of the protestant that 1,425 votes were not credited to her favor. Otherwise, it will point out the petitioner as the perpetrator of a scheme to know the contents of the ballots. 24. Paragraph (38) is a question that should be asked from the petitioner. It is her allegation that 1,425 votes were not credited to her favor. She is duty bound to substantiate the same in addition to the requirement that she allege illegal acts that resulted to such non-crediting. It is not for the Court to explain to petitioner as she is the one alleging it. The petition erroneously imputes an allegation that came from the petitioner herself. The question posted in paragraph (39) of the petition is a fallacy of non-sequitor and has no weight requiring consideration. Unless, rebutted by sufficient evidence, the data generated by the PCOS machine and the consolidation machine is presumed to be in order. 25. Paragraphs (40), (41), (42), (43) and (44) of the petition again are matters that should be best explained by the petitioner. She has not presented any evidence on the summary hearing on those maters alleged. No evidence was even presented, even summarily, on these matters. Besides, the Petitioner misses the very definition of election protest. It refers to a contest involving the election and returns of municipal elective officials grounded on fraud or irregularities in the conduct of elections, i.e., in the casting and counting of the ballots, in the consolidation of votes and in the canvassing returns, not otherwise classified as a pre-proclamation controversy cognizable by the COMELEC. The issue is who obtained the plurality of valid votes cast. Even considering, without admitting, that indeed the election protest sufficiently alleged fraudulent acts of vote-buying and terrorism, petition still is insufficient without specifying as to the persons involved and the number of ballots. The materiality of such allegation cannot be discounted. The issue for the resolution is who among the candidates obtained the plurality of votes. The petition did not specify who among the voters illegally voted and their numbers. Otherwise, they are properly subject of criminal complaint and/or petition to annul elections before the Commission. Again, the petitioner has not even filed a complaint before the PNP or before the Prosecutors Office to charge the perpetrators of commission of crimes. This could have at least buttressed her claim on the protest. As such, on its appreciation, the allegations had been properly raised upon as unsubstantiated. To reiterate, the burden of proof is on the petitioner and cannot be appreciated by mere statement. The Court cannot be faulted on the miserable failure to substantiate and/or specify the allegations in the election protest. Therefore, the allegations in paragraphs (40), (41), (42), (43) and (44) of the petition are misleading. 26. Paragraph (45) of the petition is erroneous and also misleading. The conclusions therein are far from correct appreciation of the ruling. They 13

are even misplaced on review of the election protest filed and the applicable rule of law. Petitioner is trying to impute upon the respondent what she claims in her election protest. The rule of law requires party to prove his/ her allegations; this is a basic principle of equity that everyone knows. It is the petitioners burden to show: [1] the specific allegations of fraud in the precinct, and [2] to correlate the same to her allegation that 1,425 votes were not counted to her favour. It is not the other way around. On evaluation, it was even correctly determined to be wanting. The court even gave the petitioner an opportunity to correct the apparent insufficiency by allowing her to present in summary her evidence. On the proceedings, the petitioner even admitted the authenticity and genuineness of the election returns of the precinct she is contesting. Respondent even is not obliged to present in summary evidence due to the disputable presumptions that is to be rebutted by the petitioner. The issue therein is merely centered on the evaluation of sufficiency of the protest. The Court gave the petitioner chance to correct the manifest insufficiency of her election protest. The respondent has not even objected to the presentation of evidence in summary by the petitioner. However, the determination of sufficiency is a matter that is within the power of the court. It is part of the courts exercise of jurisdiction. The petitioner unjustly demands where there is no sufficient basis to allow the opening of ballots. 27. Paragraph (46) faults the Court on its exercise jurisdiction based on what petitioner and respondent presented in the summary hearings. The transcript will even point out the obstinate failure on the part of the petitioner to provide explanation to her claim that 1,425 votes were not credited to her favor. The issue cannot be avoided as it is the supposed allegation supporting her coveted relief of revision. Again, on evaluation of the allegation alone there are no specific details of illegal acts committed or anomaly that resulted to the no-crediting of 1,425 votes that supposedly to her favour. On this petition, the petitioner faults the respondent on her failure to explain the same through the presentation of her witnesses. It is her fault why she was not able to explain the supposed missing votes and for not presenting evidence to support the claim. 28. What was at issue on the proceeding was the sufficiency of the election protest in relation to the requirement of Section 10, Rule 2 of A.M. No. 10-4-1-SC. Under scrutiny is the election protest filed by petitioner. As aforementioned, this is allowed. The basis for the same is Section 2, Rule 6, A.M. No. 10-4-1-SC. On the proceedings conducted, the respondent is even not obliged to present evidence contrary to the claim in paragraphs (47), (48), (49) and (50). Thus, paragraphs (52-61) of the petition are without basis in law. These are erroneous legal conclusions. 29. Petitioner misapplied the ruling in Miguel vs. COMELEC to this case. The ruling and/or the decision clearly explained the reasons why the 14

mentioned case will not apply. The facts in Miguel vs. COMELEC are different and on different election system. The following are notable differences to the Miguel vs. COMELEC case:
MIGUEL vs. COMELEC 1. Manual System of Election; 2. Allegations in the protest are probable and readily discernible considering the election system whereby the appreciation is with human intervention; 3. The allegations of facts are specific and alleges readily noticeable errors; 4. The allegation relates to error in the appreciation and creates issue on plurality of votes; RONDINA vs. CHAN 1. Automated Election System (AES); 2. Allegation as to non-crediting of 1,425 votes for the petitioner is highly improbable considering the automated type of election where machine determines or appreciates the ballot; 3. Too general considering the claim that 1,425 votes were not counted in favour of protestant/petitioner; 4. The allegations does not create an issue as to the plurality of votes considering that the matter can very well be explained even without revision of the ballots; 5. Will not require as the claim of 1,425 votes is improbable

5. Allegations will require examination of ballots

The implication of the foregoing disparity in the circumstances and facts surrounding this case, it is just logical that the Miguel vs. COMELEC will not apply. The allegations in this case will not require examination of the ballots on account of the falsity of the claim of the petitioner. It is very much improbable that the petitioner lost 1,425 votes or that the PCOS machine did not credit to her favor such number of votes by merely getting the difference between the total number of votes for the three candidates for mayor and the total number of actual voters. She further concluded that such difference were votes to her favour. The doubt is very much apparent. It is not based on actual account of what happened in the protested precinct but is a mere speculation. There is even a question on how come she arrived to such allegation which as mentioned not supported by factual basis. Further, the speculation that 1,425 votes were not counted to her favor is not even coupled with allegation of fraud, irregularity or anomaly that caused the non-crediting of votes to petitioners favor. This speculation will not suffice to be a basis for the issuance of an order to conduct revision. The results generated for by the PCOS machine enjoys the presumption of regularity. Respondent repeatedly raises the point that the allegations in the election protest cannot at the very least create an issue which rebuts the disputable presumptions under the rules. In conclusion, it is a futile exercise when at the very beginning the allegations in the protest would not require continuing with the proceedings.

15

30. The petitioner argues that all the Court has to do was to peruse on the allegations and not to require submission of evidence to support the allegations of electoral frauds. On this, petitioner imputes fault to the Court. The conclusion of the petitioner is too presumptuous. It should be noted that the hearing conducted was merely on the question on the sufficiency of allegations of the election protest. It is misleading to conclude that the hearing were for the purpose of presenting evidence on the main case. It is even admitted to by the petitioner that proceeding was to thresh out the issues on the affirmative defense. This is expressly allowed under Section 2, Rule 6 of A.M. No. 10-4-1-SC. The court at its discretion may hold a preliminary hearing on the grounds so pleaded. As such, this cannot be considered an abuse of discretion or a patent evasion of duty on the part of the Court. This was even an opportunity for the petitioner to correct the errors of insufficiency of her allegations in the election protest. However, she miserably failed to at the very least to explain the factual basis of her claim that the PCOS machine did not credit 1,425 votes to her favor. She was asked what fraud or irregularity committed that resulted to the noncrediting of 1,425 votes. This is just so as the rules require specificity on the allegation of fraud or irregularity on the contested precincts in the election protest. Again, it could not be explained or supported by the protestant. These questions are expected as the rule requires them to be so stated or alleged in the election protest. The position of petitioner on the Miguel vs. COMELEC ruling is too literal that would result to unjust consequences. It may even defeat the very purpose of the conduct of elections. The elections have been conducted and the results have been tabulated and consolidated without human intervention. This is an achievement towards a more credible election. Allowing a manual recount of the ballots on a mere speculative ground and/or an improbable ground is a regression that should be avoided. This is neither for the sake of automation nor to protect the electoral system but on the necessity of upholding the will of the majority. The constituents of the municipality of Babatngon casted votes and the same were counted and tallied under the automated system. It cannot be set aside by mere claim and speculation that 1,425 votes were not credited to petitioners favour. Aside from the imputation of grave abuse of discretion, the petitioner failed to pinpoint with clarity the basis of the conclusion.

PRAYERS
WHEREFORE, IN VIEW OF THE FOREGOING, it is respectfully prayed for and in supplication pleaded that, after consideration of parties positions, this petition be DISMISSED for patent lack of merit. Other reliefs, lawful and equitable, under the circumstances are also prayed for

October 31, 2013, Tacloban City for Manila. 16

RUBEN LL. PALOMINO Counsel for Respondent/Protestee Roll No. 48206/ PTR No. 7166870, January 4, 2013/ IBP No. 915416, January 4, 2013 - Leyte Chapter/ MCLE Compliance No. IV-0004444, February 7, 2012/TIN-929616-11,brunstein02@gmail.com/Tel. No. (053) 323-8515 The Law Office of R. Palomino, Unit 7- 2nd Floor, SDC II Building, National Highway, Brgy. 77, Marasbaras, Tacloban City

Copy furnished:
ATTY. MARIA BERNADETTE V. SARDILLO MAGNO SARDILLO AGUILAR LITONJUA LAW OFFICES Unit 802, Taipan Place, F. Ortigas Avenue, Ortegas Center, Pasig City

17

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING


I, CHARITA M. CHAN, of legal age, married, Filipino and a resident of Municipality of Babatngon, Leyte, after having been duly sworn to in accordance with law, hereby deposes and says: 1. That I am the Protestee/Respondent in the above-entitled case; I caused the preparation of the foregoing ANSWER TO PETITON and have fully read and understood the contents thereof; 2. That all the allegations therein are of my own and are true and correct to the best of my own personal knowledge and on authentic records and documents which were faithfully reproduced from their respective originals; 3. That I hereby CERTIFY that I have not commenced any other action or actions involving the same issue or issues in the Supreme Court, the Court of Appeals, the COMELEC or in any other court, board, tribunal or agency; 4. That to the best of my own knowledge and information, no such other action or proceedings involving the same parties and issues are pending in the foregoing courts, board, tribunal or agency; 5. That if I should hereinafter learn that other similar action or proceedings is pending in any of the foregoing courts, tribunal, board or agency, I will promptly inform that fact and state the status thereof to the Honorable Office and the other court, board, tribunal or agency concerned within five (5) days therefrom; IN WITNESS WHEREOF, I have hereunto set my hand this 04th day of November 2013 in the City of Tacloban, Philippines.

CHARITA M. CHAN Protestee-Affiant

SUBSCRIBED AND SWORN to before me this 4th day of November 2013 in the City of Tacloban, Philippines affiant who is personally known to me exhibiting her League of Municipalities of the Philippines Identification Card with No. LMP-VIII-384 issued by LMP National Office, Quezon City.

18