Sec. 241, B.P. 881: 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 (delayed lost or destroyed), 234 (material defects), 235 (tampering or falsification) and 236 (discrepancies in election returns) in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.
Q: When is a pre-proclamation case allowed?
A: It is allowed in cases involving elective provincial, city or municipal officers. Pre-proclamation cases in elections for President, Vice-, Senator, Congressman and Party-List are not allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or certificates of canvass. But the canvassing board may correct manifest errors in the Certificates of Canvass or Election Returns, motu propio or upon verified petition of an interested person. (sec. 15, R.A. 7166)
WHO CAN FILE: candidate, registered political party or coalition
WHERE FILED: Board of Canvassers or COMELEC in division
Is the COMELEC in a pre-proclamation case allowed to go beyond the face of the election returns?
Belac v. COMELEC, G.R. No. 145802, April 4, 2001
The Supreme Court held that Diasen’s petition pertains to a pre-proclamation controversy. Specifically, it alleges that the votes for petitioner Belac were all padded through “Operation Dagdag”; the election returns for him (Diasen) was tampered, falsified and manufactured; and that the election returns were already prepared even before the counting of votes. But Diasen did not say that the alleged irregularities appear on the face of the election returns. Obviously, they came from external sources and, therefore, not manifest on the election returns.
In a pre-proclamation controversy, the COMELEC, as a rule, is restricted to an examination of the election returns and is without jurisdiction to go beyond or behind them and investigate election irregularities. The prevailing doctrine is that as long as the returns appear to be authentic and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting or the counting of the votes. The reason is that determination of the result of the election must be arrived at as quickly as possible on the basis of the canvass.
A party seeking to raise issues resolution of which would compel or necessitate COMELEC to pierce the veil of election returns, which appear prima facie regular on their face, has his proper remedy in a regular election protest. By their very nature, and given the obvious public interest in the speedy determination of the results of elections, pre-proclamation controversies are to be resolved in summary proceedings without the need to present evidence aliunde and certainly without having to go through voluminous documents and subjecting them to meticulous technical examinations which take up considerable time.
Issues That May Be Raised
Sec. 243, B.P. 881: The following shall be proper issues that may be raised in a pre-proclamation controversy:
- Illegal composition or proceedings of the board of canvassers:
- When majority or all members of the canvassing Board do not hold legal appointments or are in fact usurpers
- When the canvassing has been a mere ceremony that was pre-determined and manipulated to result in nothing but a sham canvassing as were: (1) there was convergence of circumstances of precipitate canvassing; (2) there was terrorism; (3) there was lack of sufficient notice to the members of the canvassing Board; (4) disregard of manifest irregularities on the face of the questioned returns/certificates in appropriate cases
- 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 this Code
- The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic
- When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.
Q: May there be other issues which may be properly subjects of a pre-proclamation controversy?
A: No, because the enumeration under sec. 243 is restrictive and exclusive. NEVERTHELESS, the Commission has authority to correct manifest errors in the tabulation or tallying of the results during the canvassing and such errors could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidate had already been made (filed directly with the COMELEC en banc not later than 5 days from date of proclamation, impleading all candidates who may be adversely affected). HOWEVER if the manifest error was discovered before proclamation during canvassing, then its correction may be filed with the canvassing Board.
Q: What issues must be raised with the Board at the first instance and not directly with the COMELEC?
A: Matters raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the elections returns.
WHEN PRE-PROCLAMATION CONTROVERSIES FILED DIRECTLY WITH COMELEC
- Canvassing Board begins to act as such
- At the time of the appointment of the member whose capacity to sit as such is objected to if it comes after the canvassing of the board
- Immediately at the point where the proceedings are or begin to be illegal. In which case, the canvassing board shall not commence, proceed or resume the canvass unless otherwise ordered by the COMELEC
WHEN TO FILE WITH THE BOARD
- Canvassing board begins to act as such
- Immediately at the point where the proceedings are or begin to be illegal
NOTA BENE: If an appeal from the ruling of the Board is taken to the COMELEC, the canvass shall be immediately suspended during pendency of appeal until the COMELEC orders continuation or resumption.
PROCEDURE BEFORE CANVASSING BOARD ON GROUND OF ILLEGAL COMPOSITION/PROCEEDING:
- Make a ruling, with notice to the petitioner, within 24 hours from the filing of the petition
- Appeal to the COMELEC within 3 days after the ruling with proper notice to the canvassing Board
- Hearing by COMELEC en banc with due notice to the parties
- Decide the case within 5 days from filing thereof
Defects in form not a ground for pre-proclamation controversy
Bandala vs. COMELEC, G.R. No. 159369, March 7, 2000
The absence of inner paper seals, although illegal, the paper seals being required in the conduct of proper canvassing of election returns, is not a proper subject of pre-proclamation controversies because such absence does not affect the authenticity or genuineness of the subject election returns. They are merely defects in form which do not warrant the exclusion of the questioned returns.
Excluded Issues
No exclusion if returns are regular on its face
Ocampo vs. COMELEC, G.R. No. 136282, Feb. 15, 2000
“To check and double check” if it were true that the contested election returns were tampered with, altered or falsified, the COMELEC en banc examined two separate copies of the election returns: (1) the copy for the Municipal Board of Canvassers and (2) the COMELEC copy, and found that the defects alleged are merely formal defects. Specifically, the findings are as follows:
- no number of registered voters in the precinct, actual number of votes cast and number of valid votes cast: formal defect is not a ground for exclusion
- no thumb mark of the chairman on page 4 and of members of the board of election inspectors on page 3 of the election returns: a mere oversight that did not vitiate the validity of the votes nor destroy the integrity of the election return
- one “missing” vote with 153 voters who actually voted and one candidate receiving 152 votes but zero for the other candidate: this does not necessarily mean that 1 vote is missing because it could also mean that one voter desisted from casting his vote or may have voted but his vote was not credited because it was stray or just illegible; not a ground for exclusion
That the election returns were obviously manufactured must be evident from the face of said documents. In the absence of strong evidence establishing spuriousness of the returns, the basic rule that the election returns shall be accorded prima facie status as bona fide reports of the results of the count of the votes for canvassing and proclamation purposes must perforce prevail.
The bare fact that candidates for public office had received zero votes is not enough to make the returns statistically improbable.
For as long as the election returns which on their face appear regular and wanting of any physical signs of tampering, alteration or other similar vice, such election returns cannot just be unjustifiably excluded. To look beyond or behind these returns is not a proper issue in a pre-proclamation controversy as in the case at bar.
Comelec may rule on “manner of preparation” of the returns, but no exclusion, just recounting if integrity of ballots was violated
Dagloc vs. COMELEC, G.R. No. 154442-47, Dec. 10, 2003
Dagloc is questioning the ruling of the COMELEC en banc to exclude certain election returns for being spurious due in part to the alleged disqualification of some members of the board of election inspectors (BEI) and that the BEI committed illegal acts, such that the votes reported in the subject returns do not reflect the true will of the electorate. However, in arriving at the resolution, the COMELEC en banc also gave great weight to the affidavit of the BEI members which were supposed to prove the regularity of the BEI’s assigned task. The COMELEC en banc found that these affidavits lacked signatures of the BEI members.
The Supreme Court held that pre-proclamation controversies are limited to: (1) challenges directed against the composition or proceedings of the board of canvassers (not the BEI), or (2) challenges related to election returns to which a party must have made specific objections. This case falls under the second category (2) and that the COMELEC en banc’s findings on the nine election returns are anchored on “the manner of their preparation,” which it found to be a sham. This ground is a pre-proclamation issue under sec. 241 and 243 in relation to sec. 235.
Furthermore, the doctrine that “as long as the returns appear to be authentic, and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting and counting of the votes,” is not applicable in this case due to the following reasons: (1) the COMELEC has authority to review the rulings of the Board of Canvassers in a pre-proclamation controversy; (2) the COMELEC en banc found that the nine election returns are fraudulent in the manner of their preparation; and (3) the allegations of irregularity is not in the casting and counting of votes but in the preparation of the election returns (tampered, falsified and were prepared under duress, threats, coercion and intimidation).
Given this factual finding, doubt is cast on the authentic appearance of said returns. Hence, the subject election returns cannot be accorded prima facie status as genuine reports of the results of the counts of votes.
However, the proper remedy in case of spurious election returns is not outright exclusion on the ground that they were fraudulently prepared by some members or non-members of the BEI. Doing so would disenfranchise the voters. What the COMELEC should have done is to ascertain whether the integrity of the ballots was violated. If it was not, then a recounting of ballots is in order and Board will use new returns. If it was violated, then the COMELEC need not recount but should seal the ballot box and order its safekeeping.
COMELEC has no jurisdiction over pre-proclamation controversies in presidential, vice-presidential, senatorial and congressional elections; Correction of Manifest Error in the Statement of Votes may be filed directly with COMELEC en banc
Sandoval vs. COMELEC, G.R. No. 133842, Jan. 26, 2000
The case involves the elective office of congressman of one legislative district, which is contested on the ground of manifest error arising from the non-inclusion of 19 election returns in the canvass, thus making the same incomplete.
While the COMELEC has exclusive jurisdiction over all pre-proclamation controversies, the exception to the general rule can be found under sec. 15 of RA 7166 which prohibits candidates in the presidential, vice-presidential, senatorial and congressional elections from filing pre-proclamation cases.
The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might result in a vacuum in these sensitive posts. The law, nonetheless, provides an exception to the exception. The second sentence of Sec. 15 allows the filing of petitions for correction of manifest errors in the certificate of canvass or election returns even in elections for president, vice-president and members of the House for the simple reason that the correction of manifest error will not prolong the process of canvassing nor delay the proclamation of the winner in the election.
Correction of a manifest error in the Statement of Votes may be filed directly with the COMELEC en banc (rule 27, sec. 5, 1993 Rules of the COMELEC). This is another exception to the rule that pre-proclamation controversies must first be heard and decided by a division of the Commission.
In determination of the case, the COMELEC must observe due process of law since this involves the exercise of its quasi-judicial power.
GROUNDS FOR CORRECTION OF MANIFEST ERRORS IN THE TABULATION/TALLYING OF RESULTS DURING CANVASSING:
- Where a copy of the election returns or certificate of canvass was tabulated more than once
- Where two or more copies of the election returns of one precinct were tabulated separately
- Where there was a mistake in the copying of the figures from the election returns to the statement of votes by precinct or from the municipal/city Certificate of Canvass to the Statement of Votes by municipality; or from the Provincial/City Certificate of Canvass to the Statement of Votes by province/city
- Where there was a mistake in the addition of the votes of any candidate
PROCEDURE BEFORE THE CANVASSING BOARD:
- Correct the manifest errors motu propio or upon verified petition by any candidate, political party, organization, coalition, after due notice and hearing
- Order of promulgation which must be in writing
- Appeal to the COMELEC within 24 hours from the promulgation
- No proclamation of winning candidate during pendency of appeal, UNLESS the votes are not affected by the appeal
- Appeal must implead as respondents the canvassing Board and all parties who may be adversely affected
- Clerk of Court of COMELEC issues summons, with copy of the appeal to the respondents
- Clerk sets appeal for hearing
- COMELEC decides en banc
Distinguished from Other Remedies
Pre-proclamation controversy vs. Failure of Election
Ampatuan vs. COMELEC, G.R. No. 149803, Jan. 31, 2002
This case involves the election of provincial officials which are claimed to be “completely sham and farcical.” The ballots were filled up en masse by a few persons the night before election day, and in some precincts, the ballot boxes, official ballots and other election paraphernalia were not delivered at all. There was also an allegation of massive fraud and terrorism. Consequently, a petition with the COMELEC for the annulment of election results and/or declaration of failure of elections was filed. The question is whether or not declaration of failure of elections is the proper remedy.
The Supreme Court ruled that a pre-proclamation controversy is not the same as an action for annulment of election results or failure of elections. 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. Thus, the COMELEC, in the case of actions for annulment of election returns or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters’ signature and thumbprints in order to determine whether or not the elections had indeed been free, honest and clean.
In this case, the proper remedy was annulment of election results and/or declaration of failure of elections which is cognizable under the exclusive jurisdiction of the COMELEC.
Pre-proclamation Controversy vs. Election Contest
Sarangani vs. COMELEC, G.R. No. 155560-62, Nov. 11, 2003
This case involves two rulings of the Provincial Board of Canvassers, signed by only two of its members. The rulings excluded Certificates of Canvass from the municipalities of Wao and Bubong on the ground that they were manufactured and falsified. Consequently, the COMELEC directed an investigation to be conducted on the two members of the Provincial Board of Canvassers for any culpable violation of the election laws which they might have committed by the following acts: (1) their failure to appear on the scheduled hearings/meetings in the instant cases after the suspension of the canvass despite their assurances and legal duty to do so; (2) their having issued the alleged written rulings excluding the COCs from Wao and Bubong without giving the Vice-Chairman the opportunity to participate and take part in the deliberations; and (3) their unprecedented act of deliberating and/or issuing the written rulings by themselves and of clandestinely submitting or turning over the said rulings to the Office of the COMELEC Secretary for promulgation without setting any hearing or giving notice to the Vice-Chairman and/or to the herein parties.
The Supreme Court upheld the findings of the COMELEC during its investigation that the alleged tampering and falsification in the Certificates of Canvass were duly accounted for and did not affect the integrity of the ballot.
In a pre-proclamation controversy, the board of canvassers and the COMELEC are not required to look beyond or behind the election returns which are on their face regular and authentic. Where a party seeks to raise issues the resolution on which would necessitate the COMELEC to pierce the veil of election returns which are prima facie regular, the proper remedy would be a regular election protest and not a pre-proclamation controversy.
Pre-proclamation Controversy is summary in nature
Lucman vs. COMELEC, G.R. No. 166229, June 29, 1995
In this case, the objections initially raised before the Municipal Board of Canvassers were proper in a pre-proclamation controversy, i.e. the election returns are obviously manufactured and/or falsified, it is not authentic, it contains alterations. However, in the appeal to the COMELEC, it was further alleged that the elections held in the precincts were tainted with massive election irregularities, such as “massive substitution of voters, snatching of ballots from the voters and filling them (ballots) up against the will of the voters by force or coercion, threats, intimidation, casting of votes by double registrants in the same precincts and flying voters.”
These allegations pertain not only to the preparation, transmission, receipt, custody and appreciation of the election returns, but to the conduct of the elections as well.
Pre-proclamation controversies are limited to challenges directed against the Board of Canvassers and proceedings before said Board relating to particular election returns to which private respondent should have made specific verbal objections subsequently reduced to writing. A pre-proclamation controversy is limited to an examination of the election returns on their face. It is beyond the COMELEC’s jurisdiction to go beyond the face of the returns or investigate election irregularities.
The proceedings in a pre-proclamation controversy are summary in nature. Reception of evidence aliunde is proscribed. Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a pre-proclamation controversy. Such issues should be posed and resolved in a regular election protest, which is within the original jurisdiction of the Regional Trial Court. In a regular election protest, the parties may litigate all the legal and factual issues raised by them inasmuch detail as they may deem necessary or appropriate.
Procedure for Raising Objections
Sec. 20, RA 7166: Procedure in Disposition of Contested Election Returns. -
(a) Any candidate, political party or coalition of political 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 receipts of any such objection, the board of canvassers shall automatically defer the canvass of the contested returns (also indicate the date and time of receipt) and shall proceed to canvass the returns which are not contested by any party (i.e. the votes for President, Vice-, Senators, Congressmen and party-list).
(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 keep up the contested returns, consider the written objections thereto and opposition, if any, and summarily and immediately rules thereon. The board shall enter its ruling on the prescribed form and authenticate the same by the signatures of its members.
(e) Any part 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 return 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 record and evidence elevate to it by the board, the Commission shall decide summarily the appeal within seven (7) days from receipt of said record 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 receipts 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 object 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.
Q: What remedy does one have if a proclamation is made pending pre-proclamation petition/appeal?
A: A petition to annul proclamation filed with the COMELEC.
Q: What is the remedy if the pre-proclamation petition/appeal is finally dismissed by the COMELEC and the opposing candidate is proclaimed?
A: Election protest filed within 10 days from the date of proclamation.
