G.R. No. 191084 JOSELITO R. MENDOZA, Petitioner v. COMMISSION ON ELECTIONS and ROBERTO M. PAGDANGANAN, Respondents.
March 25, 2010
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SEPARATE CONCURRING OPINION
CARPIO, Acting C.J.:
This case involves the election protest filed with the Commission on Elections (COMELEC) against Joselito R. Mendoza (Mendoza), who was proclaimed elected Governor of Bulacan in the 14 May 2007 elections. Mendoza garnered 364,566 votes while private respondent Roberto M. Pagdanganan (Pagdanganan) got 348,834 votes, giving Mendoza a winning margin of 15,732 votes.
After the appreciation of the contested ballots, the COMELEC Second Division deducted a total of 20,236 votes from Mendoza and 616 votes from Pagdanganan. As regards the claimed ballots, Mendoza was awarded 587 ballots compared to Pagdanganans 586 ballots. Thus, the result of the revision proceedings showed that Pagdanganan obtained 342,295 votes, which is more than Mendozas 337,974 votes. In its Resolution dated 1 December 2009 (Division Resolution), the COMELEC Second Division annulled the proclamation of Mendoza and proclaimed Pagdanganan as the duly elected Governor of Bulacan with a winning margin of 4,321 votes.
The COMELEC En Banc affirmed the Division Resolution on 8 February 2010. On 4 March 2010, the COMELEC En Banc issued an Order denying Mendozas Motion for Reconsideration and granting Pagdanganans Motion for Execution of the Division Resolution. Hence, this petition for certiorari.
I vote to grant the petition solely on the ground of the incomplete appreciation of the contested ballots, and not on the ground that the decision of the COMELEC Second Division was abandoned, resulting in the dismissal of the election protest, when the COMELEC En Banc failed to reach a majority decision.
The fundamental reason for granting the petition is the incomplete appreciation of the contested ballots. Section 211 of Batas Pambansa Blg. 881 (BP 881), otherwise known as the Omnibus Election Code of the Philippines, states that [i]n the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is a clear and good reason to justify its rejection. It is therefore imperative that extreme caution be exercised before any ballot is invalidated, and in the appreciation of ballots, doubts should be resolved in favor of their validity. For after all, the primary objective in the appreciation of ballots is to discover and give effect to the intention of the voter and, thus, preserve the sanctity of the electoral process.
In this case, the COMELEC invalidated the contested ballots in favor of Mendoza mainly on the grounds of written by one person (WBO) and marked ballots (MB). However, as pointed out by Commissioner Sarmiento, only the general objections were mentioned in the ballots invalidated on the ground of WBO, without clearly and distinctly indicating the specifics or details of the WBO objections. Such generalization falls short of the mandate provided under Section 1, Rule 18 of the COMELEC Rules of Procedure which states that [e]very decision shall express therein clearly and distinctly the facts and the law on which it is based.
Section 2(d) of Rule 14, which should apply by analogy to this case, provides:
(d) On Pair or Group of Ballots Written by One or Individual Ballots Written By Two When ballots are invalidated on the ground of written by one person, the court must clearly and distinctly specify why the pair or group of ballots has been written by only one person. The specific strokes, figures or letters indicating that the ballots have been written by one person must be specified. A simple ruling that a pair or group of ballots has been written by one person would not suffice. The same is true when ballots are excluded on the ground of having been written by two persons. The court must likewise take into consideration the entries of the Minutes of Voting and Counting relative to illiterate or disabled voters, if any, who cast their votes through assistors, in determing the validity of the ballots found to be written by one person, whether the ballots are in pairs or in groups; (Emphasis supplied)
The ruling of the COMELEC fails to specify the strokes, figures or letters indicating that the ballots were written by one person. The COMELEC merely made this omnibus ruling: These ballots are void for being written by one person. The similarity in the handwriting style/strokes is more real than apparent. The dents and slants used in writing the names of the candidates prove that these pairs of ballots were written by one person. Such a ruling is clearly insufficient.
Furthermore, the ballots were invalidated without consulting the Minutes of Voting to determine the existence of incapacitated and illiterate voters in the voting precincts. The presence of illiterate and incapacitated voters would likely account for some ballots to appear as written by one person due to assisted voting, which is authorized under Section 196 of BP 881, thus:
SEC. 196. Preparation of ballots for illiterate and disabled persons. A voter who is illiterate or physically unable to prepare the ballot by himself may be assisted in the preparation of his ballot by a relative, by affinity or consanguinity within the fourth civil degree or if he has none, by any person of his confidence who belong to the same household or any member of the board of election inspectors, except the two party member: Provided, That no voter shall be allowed to vote as illiterate or physically disabled unless it is so indicated in his registration record: provided, further, That in no case shall an assistor assist more than three times except the non-party member of the board of election inspectors. The person thus chosen shall prepare the ballot for the illiterate or disabled voter inside the voting booth. The person assisting shall bind himself in a formal document under oath to fill out the ballot strictly in accordance with the instructions of the voter and not to reveal the contents of the ballot prepared by him. Violation of this provision shall constitute an election offense.
In Delos Reyes v. Commission on Elections, the Court ruled that in the evaluation of ballots contested on the ground of WBO, the COMELEC must first verify from the Minutes of Voting or the Computerized Voters List for the presence of assisted voters in the contested precincts and take this fact into account; otherwise, the appreciation of ballots is incomplete. The Court held:
Indeed, even if it is patent on the face of the ballots that these were written by only one person, that fact alone cannot invalidate said ballots for it may very well be that, under the system of assisted voting, the latter was duly authorized to act as an assistor and prepare all said ballots. To hinder disenfranchisement of assisted voters, it is imperative that, in the evaluation of ballots contested on the ground of having been prepared by one person, the COMELEC first verify from the Minutes of Voting or the Computerized Voters List for the presence of assisted voters in the contested precincts and take this fact into account when it evaluates ballots bearing similar handwritings. Omission of this verification process will render its reading and appreciation of ballots incomplete.
In the present case, COMELECS appreciation of the 44 contested ballots was deficient for it referred exclusively to said ballots without consulting the Minutes of Voting or the Computerized Voters List to verify the presence of assisted in the contested precincts.
Thus, COMELEC acted with grave abuse of discretion in overturning the presumption of validity of the 44 ballots and declaring them invalid based on an incomplete appreciation of said ballots.
Likewise, in De Guzman v. Commission on Elections, the Court held:
As regards the 7 ballots cast in favor of De Guzman which were rejected as written-by-one in Precinct 27A Mabini, the COMELEC should have considered the data reflected in the Minutes of Voting Precinct 27A Mabini. It shows the existence of 24 illiterate or physically disabled voters which necessitated voting by assistors pursuant to Section 196 of B.P. Blg. 881 which does not allow an assistor to assist more that three times except the non-party members of the board of election inspectors. There is no showing that the 7 rejected ballots is the same as that appearing in the Minutes of Voting. All of the 7 assailed ballots were cast in favor of De Guzman. Consequently, four ballots should be appreciated in his favor it being reasonably presumed that the identically written ballots were prepared by the assistor, not only for three illiterate or physically disabled voters but also for himself. Hence, added to the 38 votes, De Guzman won the election by 42 votes.
In this case, not just seven (7) or forty-four (44) ballots were invalidated, but thousands of ballots were invalidated on the ground of WBO without taking into account the existence of illiterate and incapacitated voters in the affected voting precincts as may be shown in the Minutes of Voting or the Computerized Voters List. Surely, such patent omission is so grave as would put into doubt the reliability of the findings and the conclusion based thereon by the COMELEC.
The COMELEC likewise did not specifically indicate the reasons for the invalidation of the contested ballots on the ground of marked ballots (MB). Most of the rulings in the Division Resolution in invalidating on the ground of MB merely states that distinctive markings on each ballot which serves no other purpose but to identify the ballot and or the voter himself. Such general statement, which does not indicate the distinctive markings found on the ballots, is not sufficient considering that there are marks that cannot be considered as signs to identify a ballot which would warrant its invalidation. Thus, pertinent provisions of Section 211 of BP 881 state:
SEC. 211. Rules for the appreciation of ballots. In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voters will:
x x x x
21. Circles, crosses or lines put on the spaces on which the voter has not voted shall be considered as signs to indicate his desistance from voting and shall not invalidate the ballot.
22. Unless it should clearly appear that they have been deliberately put by the voter to serve as identification marks, commas, dots, lines, or hyphens between the first name and surname of a candidate or in other parts of the ballot, traces of the letter T, J, and other similar ones, the first letters or syllables of names which the voter does not continue, the use of two or more kinds of writing and unintentional or accidental flourishes, strokes, or strains, shall not invalidate the ballot. (Emphasis supplied)
Indeed, no ballot should be discarded as marked ballot unless clear and sufficient reasons justify that action and any doubt must be resolved in favor of the validity of the ballot. As held by the Court in Farin v. Gonzales:
We must re-affirm the rule that no ballot shall be discarded as marked unless its character as such is unmistakable. Distinction should be made between marks that were accidentally, carelessly or innocently made, and those designedly placed thereon by the voter with a view to possible identification of the ballot, which, therefore, invalidates it. In the absence of any circumstance showing that the intention of the voter to mark the ballot is unmistakable, or of any evidence aliunde to show that the words were deliberately written to identify the ballot, the ballot should not be discarded. (Emphasis supplied)
Thus, in order for a ballot to be considered marked, it must clearly appear that the marks or words found on the ballot were deliberately placed thereon to serve as identification marks which therefore invalidate it.
However, I disagree with the ponencias ruling that the decision of the COMELEC Second Division was abandoned, resulting in the dismissal of the election protest, when the COMELEC En Banc failed to reach a majority decision. The COMELEC Second Division had jurisdiction to decide this election contest under Section 3, Article IX-C of the Constitution. The failure of the COMELEC En Banc to reach a majority decision on the motion for reconsideration operated to affirm the decision of the COMELEC Second Division.
Accordingly, I vote to GRANT the petition on the sole ground that the COMELEC En Banc committed grave abuse of discretion when the En Banc, just like the COMELEC Second Division, failed to make a complete appreciation of the contested ballots.
ANTONIO T. CARPIO
Acting Chief Justice
 Dojillo v. Commission on Elections, G.R. No. 166542, 25 July 2006, 496 SCRA 482; Silverio v. Clamor, 125 Phil. 917 (1967).
 Velasco v. Commission on Elections, G.R. No. 166931, 22 February 2007, 516 SCRA 447; De Guzman v. Commission on Elections, G.R. No. 159713, 31 March 2004, 426 SCRA 698; Torres v. House of Representatives Electoral Tribunal, 404 Phil. 125 (2001).
 Rules of Procedure in Election Contests Before the Courts Involving Municipal and Barangay Officials.
 G.R. No. 170070, 28 February 2007, 517 SCRA 137.
 Id. at 150-151.
 G.R. No. 159713, 31 March 2004, 426 SCRA 698.
 Id. at 711-712.
 In his petition, Mendoza alleged that 9,160 ballots in his favor were invalidated as written by one person.
 152 Phil. 598 (1973).
 Id. at 603-604.
 Cordia v. Monforte, G.R. No. 174620, 4 March 2009, 580 SCRA 588; Cundangan v. Commission on Elections, G.R. No. 174392, 28 August 2007, 531 SCRA 542; Perman v. Commission on Elections, G.R. No. 174010, 8 February 2007, 515 SCRA 219.
 Section 3 of Article IX-C of the Constitution reads:
The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (Emphasis supplied)