5. Pre-proclamation Controversies

Does the HRET have jurisdiction over preproclaimed controversies?

No, the COMELEC has exclusive jurisdiction over pre-proclaimed controversies. (Omnibus Election Code, § 242)

Grounds in Pre-Proclamation Controversies

• Illegal composition or proceedings of the board of canvassers
• Filed with the BOC or with COMELEC
• Within 3 days from a ruling (if based on illegal proceedings), or as soon as the Board begins to act.
• Irregularities in relation to the preparation, transmission, receipt, custody, and appreciation of election returns and certificates of canvass:
• ERs are delayed, lost or destroyed
• Material defects in the ERs
• ERs appear to be tampered with or falsified
• Discrepancies in the ERs
• Canvassed returns are incomplete, contain material defects
• ERs are delayed, lost or destroyed
• In this case, the Board can use any of the authentic copies
• Or terminate canvass if the missing returns will not affect the results anyway
• Missing requisites
• Board calls for members of the BEI to complete or correct the return. DON'T EXCLUDE, if correctable.
• ERs are tampered, falsified, altered after these left the hands of BEI, not authentic, prepared under duress, force, intimidation, ect.
• Resort to the ERs
• If the applicable procedure calls for opening a ballot box, first determine its integrity under Section 234 of the Omnibus Election Code. Recount only if integrity is intact; if integrity has been violated, Section 237 prohibits recounting, and the box must be sealed and ordered for safekeeping (Lee vs. COMELEC, G.R. No 157004, 2003).
• Discrepancies in other authentic copies of the returns or discrepancies in the votes of any candidate in words/figures - and these would affect results of the election
• Order opening of ballot boxes for recount
• ERs prepared under duress, threats, coercion, intimidation, obviously manufactured

NOTE: “Obviously manufactured” - According to the Court, when it follows the doctrine of statistical improbabilities or “Statistically improbable data”.

• Substitute or fraudulent returns in controverted polling places are canvassed, and the results materially affect the standing of candidates. For national officials, the only grounds available are:
• Illegal composition or proceedings of the board of canvassers
• Manifest errors - matters regarding the preparation, transmission, receipt, custody, and appreciation of election returns shall be brought, in the first instance, before the board of canvassers, not the COMELEC. (Fernandez vs. COMELEC, G.R. No. 171821, 2006).

GENERAL RULE: COMELEC cannot go behind the face of an election return. It is beyond the jurisdiction of COMELEC to go beyond the face of the returns or investigate election irregularities.

EXCEPTION: When there is a prima facie showing the ER is not genuine.

When several entries have been omitted, the election return is incomplete; apply Section 234 of the Omnibus Election Code: determine ballot-box integrity before any opening and recount, subject to Section 237 if integrity has been violated (Lee vs. COMELEC, G.R. No 157004, 2003).

Material Defect v. Falsified/Tampered

Jurisdiction:

• Contested composition or proceedings of the board - may be initiated in the Board of Canvassers or COMELEC.
• Contested ERs - should be brought in the 1st instance before the board of canvassers only.

General Rule: When the Electoral Tribunal obtains jurisdiction, it precludes the COMELEC from exercising powers over pre-proclamation controversies.

Exception:

• BOC was improperly constituted
• Proclamation was null and void
• Quo warranto is not the proper remedy
• What was filed was a petition to annul a proclamation, and not quo warranto or election protest.
• Election contest expressly made without prejudice to PPC or it was made ad cautelam (cautionary).

In exercising its powers and jurisdiction, as defined by its mandate to protect the integrity of elections, the COMELEC “must not be straight-jacketed by procedural rules in having election disputes.” (Violago v. COMELEC, G.R. No. 194143 (October 4, 2011)).

Two Objection Rule: Object orally when the election return is presented for canvass; submit the written objection and supporting evidence within 24 hours. There is substantial compliance even if the oral objection is filed, then written objection with evidence is submitted within 24 hours.

However, in Marabur v. COMELEC, the Court held that there is substantial compliance if despite the absence of a written objection, an offer of evidence is made within the 24-hour period. (Marabur vs. COMELEC, G.R. No. 169513, 2007).

Summary Nature:

• Pre-proclamation controversies shall be heard summarily by the COMELEC.
• Its decision shall be executory after 5 days from receipt by the losing party of the decision, unless restrained by the SC.

General Rule: Pre-proclamation cases are deemed terminated:

• At the beginning of the term of the office involved and the rulings of the BOC concerned deemed affirmed.
• This is without prejudice to the filing of a regular election protest by the aggrieved party.

Exceptions: Proceedings may continue if:

• COMELEC determines that the petition is meritorious and issues an order for the proceedings to continue.
• The SC issues an order for the proceedings to continue in a petition for certiorari.

Where a proclamation is null and void, the proclamation is no proclamation at all and the proclaimed candidate’s assumption of office cannot deprive the COMELEC of the power to declare such nullity and annul the proclamation. (Federico v. COMELEC, G.R. 199612, 2013).

But the remedy of filing a pre-proclamation case is still available after proclamation if the proclamation should have been suspended because of contested election returns. (Jainal vs. Comelec, G.R. No. 174551, 2007).

Manifests Errors:

• Mistake in adding
• Mistake in copying of figures from ER or Statement of Votes
• ERs from non-existent precinct canvassed
• Copy of ER tabulated more than twice
• 2 or more copies of ER and COC in 1 precinct counted separately

NOTE: The grounds for manifest errors are exclusive.

It suspends the running of the period within which to file an election protest or quo warranto proceeding.

Notwithstanding the pendency of any pre-proclamation controversy, the Commission may summarily order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy.

An aggrieved party may file a petition for certiorari with the COMELEC whenever a judge hearing an election case has acted without or in excess of 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. (Bulilis v. Nuez, G.R. No. 195953, 2011).

Pre-proclamation Controversy v. Election Contest