Republic of the Philippines

SUPREME COURT
Baguio City

EN BANC

G.R. No. 166639 April 24, 2007

ROGELIO P. JUAN Petitioner,

vs.
COMMISSION ON ELECTIONS and SALVADOR C. DEL
MUNDO, Respondents.

DECISION

NACHURA, J.:

This is a petition for certiorari and prohibition 1 seeking the reversal of the
Commission on Elections ("COMELEC") En Banc Resolution dated January 25,
2005, affirming with modification the ruling of the COMELEC Second
Division2 ("Second Division") in an election protest involving the office of
the Punong Barangay of Barangay Talipapa, Novaliches, Quezon City. The
Second Division reversed the Decision dated May 15, 2003 of Branch 38 of the
Metropolitan Trial Court of Quezon City.3

The Facts

Petitioner Rogelio P. Juan and respondent Salvador C. Del Mundo were both
candidates for the position of Punong Barangay of Barangay Talipapa,
Novaliches, Quezon City, in the July 15, 2002
synchronized barangay and sangguniang kabataan elections. Petitioner was
proclaimed the winner by a margin of 1,083 votes. 4 Claiming massive electoral
fraud and dissatisfied with the results, respondent filed an election protest before
the trial court.5 Respondent sought the recount of ballots in all of the seventy-two
(72) precincts of Barangay Talipapa.

In his Answer, petitioner denied respondent's claim, contending that the election
was clean and credible and that the respondent did not object to the tabulation
made by the Board of Election Tellers (BET). Correlatively, petitioner filed a
counter-protest.

The trial court scheduled the recounting of ballots. In the course thereof, on
October 16, 2002, petitioner moved to stop the recount because before they were
opened, some ballots boxes had broken and/or unlocked plastic seals. Petitioner
claimed that the integrity of the ballots contained therein had been compromised
and the recount would not faithfully reflect the true will of the people. After
requiring the parties to submit their respective memoranda, the trial court denied
the said motion since it was premature to conclude that fraudulent acts were
indeed committed. The trial court proceeded with the recount.

The Ruling of the Trial Court

On May 15, 2003, the trial court dismissed the election protest filed by
respondent and proclaimed petitioner the duly elected Punong Barangay of
Barangay Talipapa, Novaliches, Quezon City. The trial court held that petitioner
won the election by garnering 3,102 votes over respondent's 2,576 votes, or a
winning margin of 526 votes. The trial court noted that both parties made claims
and objections as to the ballots. However, they failed to formally offer the said
contested ballots in evidence.6

Respondent appealed to the COMELEC. The appeal, docketed as EAC No. 116-
2003, was raffled to the Second Division.

The Ruling of the COMELEC

In its Resolution dated January 30, 2004, the Second Division granted
respondent's appeal, reversed the trial court's Decision, declared respondent as
the duly elected Punong Barangay of Barangay, Talipapa, and ordered petitioner
to peacefully vacate the contested office. 7 The Second Division found respondent
to have won the election by 1,241 votes.8 The Second Division made the
following findings:

For respondent Salvador Del Mundo:

Total Number of Votes

As Per Physical Count
Add: Valid Claimed Ballots 20
Less: Marked Ballots 16

TOTAL VALID VOTES 2,580

For petitioner Rogelio Juan:

Total Number of Votes

As Per Physical Count 3,102
Add: Valid Claimed Ballots 32
Less: Ballots Found To be
Written by One Person (WBOP) 1,261
Less: Ballots Found To be
Written byTwo Persons (WBTP) 6
Less: Marked Ballots 528

TOTAL VALID VOTES 1,339

Petitioner moved to reconsider. However, in a Resolution dated January 25,

2005, the COMELEC En Banc, denied the petitioner's motion, annulled his
proclamation and affirmed the Second Division's ruling with modification as to the
number of votes obtained, holding that respondent won over the petitioner by
fifty-six (56) votes.9 Thus:

FOR SALVADOR C. DEL MUNDO

Number of Votes per Physical Count 2,576

Less: Invalid Votes - 16

2,560
Add: Valid Claims + 20
Add: Result from Precinct 2858-A 36

TOTAL 2,616

FOR ROGELIO P. JUAN

Number of Votes per Physical Count 3,102

Less: Valid Votes - 607

2,495
Add: Valid Claims + 32
Add: Result from Precinct 2858-A 33

TOTAL 2,560

Hence, this petition based on the following grounds:

1. THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT

INVALIDATED THE BALLOTS OF JUAN ON THE GROUND THAT
THEY WERE "MARKED BALLOTS" DESPITE
UNCONTROVERTED EVIDENCE THAT THE "MARKINGS"
FOUND ON THESE BALLOTS WERE THE RESULTS OF POST
ELECTION OPERATION IN THIRTY- SEVEN (37) REVERSAL
PRECINCTS10 WHEREIN THE BALLOT BOXES AND THE
CONTENTS THEREOF WERE TAMPERED WITH THE CLEAR
INTENTION OF INVALIDATING THE SAID BALLOTS OF JUAN.
2. IT WAS GRAVE ABUSE OF DISCRETION FOR THE COMELEC
TO INVALIDATE THE BALLOTS OF JUAN ON THE GROUND
THAT SUCH BALLOTS WERE WRITTEN IN PAIRS BY ONE OR
TWO PERSONS WHEN ON THEIR FACES THEY WEE CLEARLY
WRITTEN BY DIFFERENT PERSONS, EXCEPT FOR THOSE
FAKE BALLOTS INTRODUCED DURING THE POST ELECTION
OPERATION THAT TAMPRED THE BALLOT VOXES AND THE
CONTENTS OF THE AFORESAID THIRTY SEVEN (37)
REVERSAL PRECINCTS.11
Petitioner contends that the testimonies of 107 public school teachers as
chairpersons and members of the BET attest that: (1) they observed no markings
in the contested ballots or that the same were prepared by one or two persons,
and that there were no irregularities in the appreciation thereof in the precinct
level;12 (2) the contested ballots were results of post-election operations intented
to invalidate the petitioner's votes as evidenced by the condition of the ballot
boxes in the reversal precincts showing that the same were violated; 13 and, (3) as
such, the ballots can no longer be relied upon, hence, the uncontested election
returns should be the basis in determining the election results. 14

On the other hand, respondent contends that: (1) the instant petition has no basis
since the appreciation of contested ballots involves a question of fact best left to
the determination of the COMELEC ; (2) the petitioner's allegation of post-
election operations is not supported by evidence and partake of a factual
determination; and , (3) the best evidence in determining the results are the
ballots, in the absence of any evidence that the ballots were indeed tampered or
substituted.15

Moreover, the COMELEC through the Office of the Solicitor General (OSG)
claims that the petitioner failed to prove his allegation of post-election operations
and that the testimonies of the said BET chairpersons and members do not
establish the commission of the same. Thus, the OSG submits that the
COMELEC did not commit grave abuse of discretion in issuing the assailed
resolutions.16

On February 1, 2005, this Court issued a Resolution requiring the parties to

observe the status quo prevailing before the issuance of the COMELEC's
assailed resolutions.17

The Court's Ruling

The petition is bereft of merit.

A ballot indicates the voter's will. There is no requirement that the entries in the
ballot be written nicely or that the name of the candidate be spelled accurately. In
the reading and appreciation of ballots, every ballot is presumed valid unless
there is a clear reason to justify its rejection. The object in the appreciation of
ballots is to ascertain and carry into effect the intention of the voter, if it can be
determined with reasonable certainty.18 When placed in issue, as in this case, the
appreciation of contested ballots and election documents which involves a
question of fact, is best left to the determination of the COMELEC. 1^wphi1.net

As to the allegations that the "markings" on the ballots cast for the petitioner were
the result of post-election operations in the 37 reversal precincts, this Court
abides by the COMELEC findings that the said allegations were not supported by
evidence.

The petitioner argues that the testimonies of the 107 public school teachers of the
BET attest that they observed no markings in the contested ballots or that the
same were prepared by one or two persons, and that there were no irregularities
in the appreciation thereof in the precinct level. However, this Court observed that
the representative sample of the said testimonies, i.e. the Sinumpaang
Salaysay of Myrna R. Jaucian dated February 4, 2004,19 would show that the
same is an affidavit in prepared form, with the affiant only writing her name,
precinct number, and affixing her signature thereon. This only implies that the
testimonies of the said 107 teachers of the BET consisted only of the very same
prepared Sinumpaang Salaysay with only the affiants affixing their own
signatures. Further, as correctly observed by the COMELEC En Banc, the
markings on the ballots were so subtly made that they would have escaped the
scrutiny of the teachers serving as BET, and that only upon close comparison
with the other ballots did the flaws became discernible. In this light, the
testimonies of these 107 teachers of the BET do not sufficiently establish the
petitioner's claim of post-election operations on the questioned ballots.

In addition, the Court agrees with the observation of the COMELEC En Banc that
even the trial court did not consider as meritorious the petitioner's protestations
about the condition and integrity of the ballot boxes. The ballots found inside the
37 precincts questioned by the petitioner as tampered were considered as valid
votes and counted accordingly. The intrinsic validity of the ballots had already
been ruled upon by the Second Division when it declared the same, upon visual
examination thereof, as genuine and authentic. Morever, this finding of the
Second Division has been upheld by the COMELEC En Banc.

This Court is not a trier of facts.20 The Court's jurisdiction to review decisions and
orders of the COMELEC on this matter operates only upon a showing of grave
abuse of discretion on the part of the COMELEC. Verily, only where grave abuse
of discretion is clearly shown shall the Court interfere with the COMELEC's
judgment.21

Grave abuse of discretion arises when a lower court or tribunal violates the
Constitution, the law or existing jurisprudence. It means such capricious and
whimsical exercise of judgment as would amount to lack of jurisdiction; it
contemplates a situation where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, so patent and gross as to
amount to an evasion of positive duty or a virtual refusal to perform the duty
enjoined by law.22 The office of a petition for certiorari is not to correct simple
errors of judgment;23 any resort to the said petition under Rule 64 in relation to
Rule 65 of the 1997 Rules of Civil Procedure is limited to the resolution of
jurisdictional issues.24 Thus, it is imperative for the petitioner to show caprice and
arbitrariness on the part of the COMELEC whose exercise of discretion is being
assailed.

Proof of such grave abuse of discretion is found wanting in this case. 1ªvvphi1.nét

The COMELEC'S conclusion on a matter decided within its competence is

entitled to utmost respect. It is not sufficient to allege that the COMELEC gravely
abused its discretion. Such allegation should also be justified. 25 In this case,
petitioner failed to justify his assertion of grave abuse of discretion against the
COMELEC. In the same token, petitioner failed to support his allegation with
evidence that post-election operations were devised in order to invalidate his
votes. Moreover, the COMELEC's proceedings were conducted in accordance
with the prevailing laws and regulations.
To recall, the trial court itself manifested that both parties failed to formally offer
the contested ballots in evidence. The Second Division did not merely rely on the
ruling of the trial court. Instead, it conducted a reappreciation of the contested
ballots. Furthermore, the COMELEC En Banc made an independent, judicious
and careful scrutiny of the contested ballots. It reviewed and passed upon the
validity or invalidity of the same. It is unfortunate for the petitioner that the
COMELEC En Banc's modified tally did not change the results of the elections.

Time and again, this Court held:

"Findings of facts of administrative bodies charged with their specific field of

expertise, are afforded great weight by the courts, and in the absence of
substantial showing that such findings are made from an erroneous estimation of
the evidence presented, they are conclusive, and in the interest of stability of the
governmental structure, should not be disturbed. The COMELEC, as an
administrative agency and a specialized constitutional body charged with the
enforcement and administration of all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum, and recall, has more than enough
expertise in its field that its findings or conclusions are generally respected and
even given finality. We do not find the instant case an exception to this avowed
rule."26

WHEREFORE, the instant petition is DISMISSED for lack of merit. The

COMELEC En Banc Resolution dated January 25, 2005 is hereby AFFIRMED.
Accordingly, this Court's Resolution requiring the parties to observe the status
quo dated February 1, 2005 is hereby lifted. No costs.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

CONSUELO YNARES-
LEONARDO A. QUISUMBING
SANTIAGO
Associate Justice
Asscociate Justice

ANGELINA SANDOVAL-
ANTONIO T. CARPIO
GUTIERREZ
Asscociate Justice
Associate Justice

MA. ALICIA AUSTRIA-

RENATO C. CORONA
MARTINEZ
Asscociate Justice
Associate Justice
 CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.
Associate Justice Asscociate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes

1
Under Rule 64 of the 1997 Rules of Civil Procedure, Rollo, pp. 4-33.

2
Resolution dated January 30, 2004, Rollo, pp. 34-68.

3
Rollo, pp. 123-135.

4
Petitioner obtained 3,531 votes over respondent's 2,448.

5
Docketed as Election Protest No. 38-783.

6
The trial court held:

Consequently, the Court did not bother anymore to resolve the

claims and objections made by the parties during the
recounting/revision proceedings.

xxx

Since evidence in this point or aspect is wanting, the court has no

other recourse but to uphold the basic rule in evidence that:
"Official duty has been regularly performed (Rule 131, Sec. 3 [m],
 Revised Rules of Court); Decision dated May 15, 2003 (Election
Protest No. 28-783), Rollo, pp. 134-135

7
Rollo, pp. 34-68.

8
The Second Division held that respondent garnered 2,580 votes over
petitioner's 1,339 votes.

9
Rollo, pp. 90-119.

10
Petitioner specified the 37 Reversal Precincts as follows: Precinct Nos.
2904-A; 2891-A; 2882-A; 2893-A; 2881-A; 2895-A; 2837-A; 2835-A; 2899-
A; 2871-A; 2897-A; 2841-A/2878-A; 2844-A; 2900-A; 2892-A; 2889-A;
2876-A; 2898-A; 2866-A; 2879-A; 2870-A; 2872-A; 2873-A; 2850-A; 2877-
A; 2858-A; 2853-A; 2855-A; 2838-A; 2896-A; 2867-A; 2902-A; 2887-
A/2906-A; 2905-A; 2903-A; 2874-A; and 2890-A, instant Petition, Rollo, p.
12.

11
Ibid., Rollo, pp. 16-17.

12
A representative sample of the said testimonies is herein denominated
as Sinumpaang Salaysay of one Myrna R. Jaucian, dated February 4,
2004, Rollo, p. 89.

13
Petitioner manifested that said ballot boxes have shattered glass
windows; broken inner or outer plastic seals; unlocked outer or inner
plastic seals; no outer plastic seals; physical count of ballots not tallying
with the results reflected in election returns; padlock forced open; keys of
ballot boxes opened or missing, instant Petition, Rollo, p-. 17-18.

14
Petitioner's Memorandum dated February 23, 2006.

15
Respondent's Memorandum dated February 1, 2006.

16
OSG's Memorandum dated February 27, 2006.

17
Rollo, p. 185.

Dojillo v. Commission on Elections, G.R. No. 166542, July 25, 2006, 496
18

SCRA 484, 497.

19
Footnote 12, supra.

20
Henry P. Lanot, substituted by Mario S. Raymundo v. Commission on
Elections and Vicente P. Eusebio, G.R. No. 164858, November 16, 2006.

Jaime T. Torres v. House of Representatives Electoral Tribunal and Ninfa

21

Garin, G.R. No. 144491, February 6, 2001, 351 SCRA 312, 326.

Danilo "Dan" Fernandez v. COMELEC, G.R. No. 171821, October 9,

22

2006.
 Pedragoza v. COMELEC, G.R. No. 169885, July 25, 2006, 496 SCRA
23

513, 524 citing Navarosa v. COMELEC, G.R. No. 157957, September 18,
2003, 411 SCRA 369, 386.

24
Ocate v. COMELEC, G.R. No. 170522, November 20, 2006.

25
Id.

26
Footnote 21.
 EN BANC

G.R. No. 169885 July 25, 2006

ARTEMIO PEDRAGOZA, petitioner,

vs.
COMMISSION ON ELECTIONS and FRANCISCO SUMULONG,
JR., respondents.

DECISION

CARPIO, J.:

The Case

This is a petition for certiorari1 of the Resolution dated 30 September 2005 of the
Commission on Elections ("COMELEC") En Banc affirming the ruling of the
COMELEC First Division ("First Division") in an election protest case involving the
office of Punong Barangay of De La Paz, Antipolo City.

The Facts

Petitioner Artemio Pedragoza ("petitioner") and respondent Francisco Sumulong,

Jr. ("respondent") were among the candidates for Punong Barangay of De La
Paz, Antipolo City in the 15 July 2002 Sangguniang Kabataan and Barangay
elections. Petitioner was proclaimed winner by a margin of 39 votes. 2 Claiming
that irregularities marred the elections, respondent filed an election protest in the
Municipal Trial Court in Cities, Antipolo City ("trial court"). Respondent sought a
recount of ballots from 25 out of De La Paz's 103 precincts.

In his Answer, petitioner denied respondent's claim and filed a counter-protest,

contending that he was the one prejudiced by election irregularities.

The trial court revised the contested ballots.

The Ruling of the Trial Court

On 20 January 2003, the trial court rendered judgment dismissing the election
protest and counter-protest. The trial court noted that petitioner and respondent
raised substantially identical objections 3 to the contested ballots and other
election paraphernalia. After going over these grounds, the trial court ruled that
the objections did not suffice to change the election results.
Respondent appealed to the COMELEC. The appeal, docketed as EAC No. 42-
2003, was raffled to the First Division.

The Ruling of the COMELEC

In its Resolution of 18 May 2005, the First Division granted respondent's appeal,
reversed the trial court's Decision, annulled petitioner's proclamation, declared
respondent as the duly elected Punong Barangay, and ordered petitioner to
vacate the contested office and to desist from performing the functions of that
office. The First Division found respondent to have won the election by 19 votes.

The First Division noted that the parties invoked the following grounds for the
revision of ballots: (1) the assailed ballots are marked because unnecessary
words or figures, identifying markings, erasures, and retracing of letters were
manifest on the ballots or that distinctive circles, lines, or crosses were written on
the ballots; (2) pairs or sets of ballots were written by one person or that two or
more persons participated in filling-up one ballot; and (3) certain ballots are
invalid because they were not signed at the back by the Chairman of the Board of
Election Tellers. Applying pertinent rules of ballot appreciation, the First Division
deducted 75 invalid votes from, and added five valid votes to, petitioner's tally,
leaving a total of 2,189 votes. On the other hand, the First Division deducted 12
invalid votes from respondent's tally, leaving a total of 2,208 votes. Thus the 19-
vote margin in respondent's favor.

Petitioner sought reconsideration with the COMELEC En Banc, listing the ballots
he wanted re-examined. However, in the per curiam Resolution of 30 September
2005, the COMELEC En Banc denied petitioner's motion and affirmed the First
Division's findings. All the five incumbent COMELEC Commissioners, namely,
Benjamin S. Abalos, Rufino S.B. Javier, Resurreccion Z. Borra, Mehol K. Sadain,
and Florentino A. Tuason, Jr. signed the Resolution. Commissioners Sadain and
Tuason took no part, without, however, indicating the reasons for their inhibition.

Petitioner raises two contentions in this petition: (1) that the Court should
invalidate the Resolution of 30 September 2005 for having been promulgated
without a quorum because of the failure of Commissioners Sadain and Tuason to
indicate the reasons for their taking no part in the case and, alternatively, (2) that
the COMELEC En Banc committed grave abuse of discretion in affirming the
findings of the First Division.

The Issues

The petition raises the following issues:

1) Whether the failure of Commissioners Sadain and Tuason to indicate their

reasons for taking no part in the case annuls the Resolution of 30 September
2005 and, if in the negative,

2) Whether the COMELEC En Banc committed grave abuse of discretion in

affirming the First Division's findings.

The Ruling of the Court

The petition has no merit. We hold that the Resolution of 30 September 2005 is
valid and that the COMELEC En Banc did not commit grave abuse of discretion
in issuing that ruling.

The Failure of Commissioners Sadain and Tuason

to State their Reasons for Taking No Part in
the Resolution of 30 September 2005
does not Annul that Ruling

Under Section 1, Rule 18 of the COMELEC Rules of Procedure 4 ("COMELEC

Rules"), a COMELEC member who takes no part in a decision or resolution must
state the reason for his inhibition. The provision states:

Procedure in Making Decisions. ― The conclusions of the Commission in

any case submitted to it for decision en banc or in Division shall be
reached in consultation before the case is assigned by raffle to a Member
for the writing of the opinion of the Commission or the Division and a
certification to this effect signed by the Chairman or the Presiding
Commissioner, as the case may be, shall be incorporated in the
decision. Any Member who took no part, or dissented, or abstained
from a decision or resolution must state the reason therefor.
(Emphasis supplied)

Section 13, Article VIII of the 1987 Constitution imposes an identical requirement
on the members of this Court and all lower collegiate courts. 5 By intent of the
Constitution's framers, as reflected in the language of the text, this requirement is
mandatory.6 Owing to the exact identity of the two provisions' phrasing of the
requirement in question, Section 1, Rule 18 (which, in all probability, was lifted
from Section 13, Article VIII), must be of mandatory nature itself.

There is no dispute here that two COMELEC Commissioners took no part in the
30 September 2005 Resolution without stating the reasons for their inhibition.
Petitioner is of the view that this omission annuls the 30 September 2005
Resolution for lack of quorum, with the two non-participating Commissioners'
votes becoming "inexistent."7

We cannot sustain this view.

To begin with, even if the votes of Commissioners Sadain and Tuason are
disregarded (for whatever reason), a quorum still remains, with three of the then
five8 COMELEC Commissioners voting to deny petitioner's motion for
reconsideration. The more important question is whether, despite such quorum,
the 30 September 2005 Resolution should be invalidated for failure of the two
Commissioners to state the reasons for their inhibition.

While there is no extant record of the COMELEC's proceedings in adopting

Section 1, Rule 18 of the COMELEC Rules, the parallel deliberations of the
framers of the 1987 Constitution on Section 13, Article VIII shed light on the
purpose of the rule requiring a member of this Court and all lower collegiate
courts to state his reason for taking no part in a case. Because of the exact
identity of the rule in question as stated in Section 1, Rule 18 and Section 13,
Article VIII, these deliberations apply here by analogy.
In discussing the purpose of the rule in question, which was absent in the 1935
and 1973 Constitutions,9 Constitutional Commissioner and former Chief Justice
Roberto Concepcion explained that it was meant to "[see] to it that all justices
participate [in the promulgation of decisions] x x x," thus:

MR. RAMA. Madam President, I ask that Commissioner Suarez be

recognized on Section 11.

THE PRESIDENT. Commissioner Suarez is recognized.

MR. SUAREZ. Thank you, madam President.

As proposed to be amended, Section 11 would read: "x x x x ANY

MEMBER WHO TOOK NO PART OR DISSENTED, OR ABSTAINED
FROM A DECISION OR RESOLUTION MUST STATE THE REASON
THEREFOR. THE SAME REQUIREMENTS SHALL BE OBSERVED BY
ALL LOWER COLLEGIATE COURTS."

The proposed amendment seeks the deletion of the phrase "dissenting or

abstaining," and in lieu thereof, the substituted phrase "WHO TOOK NO
PART, OR DISSENTED, OR ABSTAINED FROM A DECISION OR
RESOLUTION" and then the word "THEREFOR," Madam President.

THE PRESIDENT. Are there any comments? Commissioner Guingona is

recognized.

MR. GUINGONA. Madam President, may I just inquire where the reason
is supposed to be indicated. Does the reason refer to the certification,
madam President?

MR. CONCEPCION. No. In the decision itself.

MR. GUINGONA. That is it. I am referring now to the first instance where a
Member takes no part, where, for example, he takes no part because he is
abroad or is hospitalized. I was wondering whether this need not be a
personal statement.

xxxx

MR. CONCEPCION. Generally, the Chief Justice certifies. But as to

reasons for an abstention, it is a personalized matter that only the judge
concerned may explain it.

MR. GUINGONA. This was an addition, Madam President. Originally, it

was only referring to "abstentions," it was only referring to instances when
the justice dissented.

Thank you.

MR. CONCEPCION. It is also one way of seeing to it that all justices

participate, because something must be done by the judge who did
 not take part and the reason for his failure to participate should be
stated. It may be rather awkward for a judge to say that he is abroad. We
feel that judges would, in general, prefer to avoid such explanations to
appear in many cases. The explanation was required before in case of
dissent. Now a judge must state why he took no part, or dissented, or
abstained. (Emphasis supplied)10

Being a devise to dissuade members of this Court and all lower collegiate courts
(or in this case, the members of the COMELEC) from not taking part in the
deliberation of cases, the requirement has nothing to do with the ruling involved
but concerns the judge himself. Thus, non-compliance with the rule does not
annul the ruling in which a judge takes no part but may be basis for holding him
responsible for the omission.

Indeed, the omission involved here is akin to the failure of the head of a collegiate
court to issue the certification under Section 13, Article VIII that "The conclusions
of the x x x Court in any case submitted to it for decision en banc or in division
[was] reached in consultation before the case [was] assigned to a Member for the
writing of the opinion of the Court," a requirement also imposed on the Chairman
or the Presiding Commissioner of the COMELEC, as the case may be, under
Section 1, Rule 18. We held in Consing v. Court of Appeals that such omission
does not invalidate the questioned ruling but "may be basis for holding the official
responsible for the omission to account therefor," thus:

The certification requirement, x x x, is a new provision introduced by the

framers of the 1987 Constitution. Its purpose is to ensure the
implementation of the constitutional requirement that decisions of the
Supreme Court and lower collegiate courts, such as the Court of Appeals,
Sandiganbayan and Court of Tax Appeals, are reached after consultation
with the members of the court sitting en banc or in a division before the
case is assigned to a member thereof for decision-writing. The decision is
thus rendered by the court as a body and not merely by a member thereof
[I Record of the Constitutional Commission 498-500]. This is in keeping
with the very nature of a collegial body which arrives at its decisions only
after deliberation, the exchange of views and ideas, and the concurrence
of the required majority vote.

The absence, however, of the certification would not necessarily mean

that the case submitted for decision had not been reached in consultation
before being assigned to one member for the writing of the opinion of the
Court since the regular performance of official duty is presumed [Sec. 5
(m) of Rule 131, Rules of Court]. The lack of certification at the end of
the decision would only serve as evidence of failure to observe the
certification requirement and may be basis for holding the official
responsible for the omission to account therefor [See I Record of the
Constitutional Commission 460]. Such absence of certification would
not have the effect of invalidating the decision.11(Emphasis supplied)

Accordingly, we hold that the failure of Commissioners Sadain and Tuason to

state the reasons for their inhibition from the 30 September 2005 Resolution does
not affect the validity of that ruling.
 The COMELEC did not Commit Grave Abuse of Discretion

On petitioner's alternative contention that the COMELEC En Banc committed

grave abuse of discretion in affirming the findings of the First Division, we find no
merit to this claim. In his petition, petitioner contented himself with making the
sweeping charge that the COMELEC En Banc's ruling is contrary to "law, x x x
evidence and existing jurisprudence" without substantiating his claim. Perhaps
realizing this, petitioner, in his Reply to respondent's Comment, reproduced the
grounds he raised in his motion for reconsideration with the COMELEC En Banc.
This does not suffice to sustain his claim of grave abuse of discretion. The office
of a petition for certiorari is not to correct simple errors of judgment but
"capricious and whimsical exercise of judgment amounting to lack of jurisdiction,
or arbitrary and despotic exercise of power because of passion or personal
hostility."12 We have gone over the grounds petitioner raised in his motion for
reconsideration with the COMELEC En Banc and we find no such grave error
tainting the Resolution of 30 September 2005.

WHEREFORE, we DISMISS the petition.

SO ORDERED.

Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,

Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-
Nazario, Garcia, Velasco, Jr., J.J., concur.

Footnotes

1
Under Rule 64 of the 1997 Rules of Civil Procedure.

2
Petitioner obtained 2,259 votes over respondent's 2,220.

3
The trial court noted:

[B]oth [protestant and protestee] claimed that majority of the

recounted ballots [sic] were written by one hand, x x x, there were
deliberate erasures, unnecessary markings on the ballots, some
ballots [were] written by two persons, no water mark in one ballot,
no signature of the Chairman at the back of the ballot, [the] name
of the candidate was not written in its proper space and other minor
irregularities in the writing of the names of the candidates [sic] x x
x.

There were also Comments on the Election returns/tally sheets

wherein the total number of votes were not properly indicated.
Some portions of the minutes were left blank. There was also no
thumb mark in one tally sheet and in two occasions there was no
time [sic] when the counting of ballots started and when it was
finished. Some of the ballot stubs were found inside the ballot
boxes which were not supposed to be there. (Rollo, pp. 62-63)
4
Dated 15 February 1993.

5
This provision states: "The conclusions of the Supreme Court in any case
submitted to it for decision en banc or in division shall be reached in
consultation before the case is assigned to a Member for the writing of the
opinion of the Court. A certification to this effect signed by the Chief
Justice shall be issued and a copy thereof attached to the record of the
case and served upon the parties. Any Member who took no part, or
dissented, or abstained from a decision or resolution must state the
reason therefor. The same requirements shall be observed by all lower
collegiate courts." (Emphasis supplied)

6
I Record of the Constitutional Commission ("record") 501. See J. Bernas,
the Constitution of the Republic of the Philippines: A Commentary 993
(2003 ed.).

7
Petitioner then posits that what the COMELEC should have done next
was request the Presiding Justice of the Court of Appeals to appoint a
Justice from that court to sit in the case and participate in rendering
another ruling following Section 2, Rule 4 of the COMELEC Rules which
provides: "Disqualification Resulting in Lack of Quorum. – If the
disqualification or inhibition of a Member should result in a lack of quorum
in the Commission sitting en banc, the presiding Justice of the Court of
Appeals, upon request of the Commission, shall designate a Justice of
said Court to sit in said case for the purpose of hearing and rendering a
decision thereon." (Rollo, pp. 12-14).

8
President Gloria Macapagal-Arroyo subsequently appointed former Court
of Appeals' Presiding Justice Romeo Brawner as the sixth Commissioner.

9
The 1935 and 1973 Constitutions imposed the requirement only on any
member of the Supreme Court who dissents from a ruling. The 1973
Constitution expanded the rule's coverage to "all inferior collegiate courts."

10
V RECORD 642.

11
G.R. No. 78272, 29 August 1989, 177 SCRA 14, 21-22.

Navarosa v. Commission on Elections, G.R. No. 157957, 18 September

12

2003, 411 SCRA 369, 386.