Refers to any question or matter pertaining to or affecting the proceedings of the board of canvassers, or any matter raised under Sec. 233-236 of BP 881 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. [Sec. 241, BP 881].
(1) Delayed, lost or destroyed election returns (2) Material defects in election returns
Petitioner files verified petition with the Law Department of the COMELEC.
Unless a shorter period is deemed necessary by circumstances, within 24 hours, the Clerk of Court
concerned serves notices to all interested parties, indicating therein the date of hearing, through the
fastest means available.
Unless a shorter period is deemed necessary by the circumstances, within 2 days from receipt of the notice of hearing, any interested party may file an
opposition with the Law Department of the COMELEC.
The COMELEC proceeds to hear the petition. The COMELEC may delegate the hearing of the case and
the reception of evidence to any of its officials who are members of the Philippine Bar.
The COMELEC then decides whether to grant or deny the petition. This lies within the exclusive
prerogative of the COMELEC.
(3) Tampered with, altered or falsified election returns (4) Discrepancies in election returns
POSITIONS NOT ALLOWED
(1) President (2) Vice President (3) Senator
(4) Member of the House of Representatives (Sec. 15, R.A. 7166)
Note: However, this does not preclude the authority of the appropriate canvassing body motu propio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it.
NATURE OF THE PROCEEDINGS
Summary Proceeding heard summarily by the COMELEC after due notice and hearing.
Reason: This is because canvass and proclamation should be delayed as little as possible. Questions which require more deliberate and necessarily longer consideration are left for examination in the corresponding election protest [Sison v.
COMELEC (1999)].
Remedy:Parties adversely affected by a ruling of the board of canvassers may appeal the matter to the Commission within 3 days from a ruling thereon. The Commission shall summarily decide the case within 5 days from the filling thereof (Sec 19 RA 7166)
ISSUES THAT MAY BE RAISED
Illegal composition or proceedings of the board of election canvassers
(1) Canvassed election returns are either:
a. incomplete
b. contain material defects
c. appear to be tampered with or falsified
d. contain discrepancies in the same returns or in other authentic copies
(2) The election returns were:
a. prepared under duress, threats, coercion, intimidation or
b. obviously manufactured or not authentic
(3) Substituted or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate(s) (4) Manifest errors in the Certificates of Canvass or Election
Returns [Sec. 15, R.A. 7166; Chavez v. COMELEC, 211 SCRA 315].
Note: The enumeration is restrictive and exclusive. The complete election returns whose authenticity is not questioned must be prima facie considered valid for purposes of canvass and proclamation. To allow a re-count or a re-appreciation of the votes in every instance would paralyze canvass and
proclamation.
ISSUES THAT CANNOT BE RAISED
Jurisprudence has held that the following issues are not proper in a pre-proclamation controversy:
(1) Appreciation of ballots, as this is performed by the Board of Election Inspectors at the precinct level and is not part of the proceedings of the Board of Canvassers [Sanchez v.
COMELEC, 153 SCRA 67]
(2) Technical examination of the signatures and thumb marks of voters [Balindong v. COMELEC, 260 SCRA 494; Matalam v. COMELEC, 271 SCRA 733].
(3) Prayer for re-opening of ballot boxes [Alfonso v. COMELEC (1994)].
(4) Padding of the Registry List of Voters of a municipality, massive fraud and terrorism [Ututalum v. COMELEC, 181 SCRA 335].
(5) Challenges directed against the Board of Election Inspectors [Ututalum v. COMELEC, 181 SCRA 335].
(6) Fraud, terrorism and other illegal electoral practices.
These are properly within the office of election contests over which electoral tribunals have sole, exclusive jurisdiction [Loong v. COMELEC].
PROCEDURE
Procedure for filing a pre-proclamation controversy (a) Questions involving the composition or proceedings of the board of canvassers, or correction of manifest errors Where The controversy may be initiated either in the
Board of Canvassers or directly with the COMELEC [Sec. 17, R.A. 7166].
When It depends
1. If petition involves the illegal composition or proceedings of the board, it must be filed immediately when the board begins to act as such , or 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, or immediately at the point where the proceedings are or begin to be illegal [Laodeno v. COMELEC, 276 SCRA 705].
Otherwise, by participating in the proceedings, the petitioner is deemed to have acquiesced in the composition of the Board o f Canvassers.
2. If the petition is for correct ion, it must be filed not later than 5 days following the date of proclamation, and must implead all candidates who may be adversely affected thereby [Sec. 5(b), Rule 27, COMELEC Rules of Procedure].
PROCEDURE If filed with the Board first:
1. Petitioner submits his / her objection to the chairman of the board of canvassers.
2. The Board makes its ruling.
3. Within 3 days from the ruling, the parties adversely affected may appeal the matter to the COMELEC.
4. Upon appeal, the COMELEC shall summarily decide the case within 5 days from the filing thereof [Sec. 19, R.A. 7166].
If initiated directly with the COMELEC
1. Petitioner files petition with the COMELEC.
2. Upon the docketing of such petition, the Clerk of Court concerned shall issue summo ns with a copy of the petition to respondents.
3. The Clerk of Court concerned shall immediately set the petition for hearing. The COMELEC shall hear and decide the petition en banc.
The Board of Canvassers shall not commence, proceed or resume canvass unless otherwise ordered by COMELEC [Sec. 5, Rule 27, COMELEC Rules of Procedure].
(b) Matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns and certificates of canvass
Where Only with the Board of Canvassers
When At the time the questioned return is presented for inclusion in the canvass.
Who Any candidate, political party or coalition of political parties
Procedure
1. The contesting party makes an 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 is recorded in the minutes of canvass. Simultaneous with the oral objection, the objecting party enters his objection in the form for written objections prescribed by the COMELEC.
2. Upon receipt of such objection, the Board automatically defers the canvass of the contested returns and proceeds to canvass the returns, which are not contested by any party.
3. Within 24 hours from and after the presentation of such objection, the objecting party submits the evidence in support of the objection, which shall be attached to the form for written objections.
Within the same 24-hour period, any party may file a written and verified opposition to the objection in the prescribed COMELEC form, attaching supporting evidence, if any. The Board shall not entertain any objection or opposition unless reduced t o writing in the prescribed forms.
4. The Board chairman immediately and formally admits the evidence attached to the objection or opposition by affixing his signature at the back of each and every page thereof.
5. Upon receipt of the evidence, the Board considers the objection and the opposition, and summarily rules on the objection. The Board then enters its ruling on the prescribed form and authenticates the same by entering the signatures of all its members.
6. The parties adversely affected by the ruling immediately inform the Board if they intend to appeal the ruling. Such information is then entered in the minutes of canvass.
7. The Board then sets aside the returns and proceeds to consider the other returns. The Board then suspends the canvass after all the uncontested returns have been canvassed and the contested return ruled upon by it.
8. Within 48 hours from the ruling, the party adversely affected files a written and verified notice of appeal with the Board. The party then files an appeal with the COMELEC within a non-extendible period of 5 days thereafter.
9. Immediately upon receipt of the notice of appeal, the Board makes an appropriate report to the COMELEC, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report.
10. The COMELEC summarily decides the appeal within 7 days from receipt of the record and evidence elevated to it by the Board.
11. The COMELEC's decision becomes executory after the lapse of 7 days from receipt thereof by the losing party.
12. The COMELEC then authorizes the Board of Canvassers to proceed with the proclamation of the winner. Any proclamation made without COMELEC authorization is void ab initio, unless the contested returns do not adversely affect the results of the election. (Sec. 20, R.A. 7166)
Note: Mandatory procedure and non-compliance would be fatal to the pre-proclamation petition.
EFFECT OF FILING PRE-PROCLAMATION CONTROVERSIES
The period to file an election contest shall be SUSPENDED during the pendency of the pre-proclamation contest in the COMELEC or the Supreme Court [Sec. 248, Omnibus Election Code].
EFFECT OF THE PROCLAMATION OF WINNING CANDIDATE
A pre-proclamation controversy shall no longer be viable after the proclamation and assumption into office by the candidate whose election is contested. The remedy is an election protest before the proper forum [Mayor v.
COMELEC (1989)].
The prevailing candidate may still be unseated even though he has been proclaimed and installed in
office if:
i. The opponent is adjudged the true winner of the election by final judgment of court in an election contest;
ii. The prevailing party is declared ineligible or disqualified by final judgment of a court in a quo warranto case; or
iii. The incumbent is removed from office for cause.