Assailed in this petition for certiorari under Rule 65 is the September 1, 1998 resolution of the Commission on Elections (Comelec) en banc in SPC No. 98-109, denying petitioner’s motion for reconsideration and affirming the June 8, 1998 order of its Second Division.1 [Composed of Julio F. Desamito (Presiding Commissioner) and Japal M. Guiani.] The aforesaid order upheld the ruling of the Municipal Board of Canvassers of Uson, Masbate to include in its canvassing the 37 election returns objected to by petitioner.

Petitioner Jesus L. Chu and private respondent Salvadora O. Sanchez (Sanchez) were candidates for municipal mayor of Uson, Masbate in the May 11, 1998 elections. While the election returns were being canvassed by the Municipal Board of Canvassers of Uson, Masbate (MBC), petitioner objected to the inclusion in the canvass of some of the election returns.2 [Rollo, 40, 326.] Petitioner alleged that Sanchez, with the aid of armed men, entered into the polling places where the centralized counting was being conducted, and exerted undue influence and intimidation upon the board of election inspectors (BEI) who were then counting the votes and preparing the election returns.3 [Ibid., 184.] Thus, according to petitioner, the votes reflected in these returns are no longer reflective of the will of the electorate and should not be included in the canvass.4 [Ibid., 5.]

Petitioner claims that he orally objected to the inclusion of seventy-four (74) election returns. Yet, he was only able to file written objections within 24 hours from the time the oral objections were made as required under section 245 of the Omnibus Election Code (the "Code")5 [Batas Pambansa Blg. 881.] for thirty-seven (37)6 [It is noted that in his petition filed with this Court, petitioner alleges that he was only able to file proper and timely objections to thirty-four (34) election returns. However, his appeal with the Comelec and the June 8, 1998 order of the Comelec’s Second Division both state that petitioner filed written objections to thirty-seven (37) election returns. Rollo, 9, 40, 184.] election returns. Petitioner attributed this shortcoming to the MBC’s refusal to give him the prescribed form when it convened on the evening of May 11, 1998. It was only on May 12, 1998, at 5 p.m., after the MBC had already finished canvassing forty (40) election returns, that the MBC furnished petitioner with a single copy of the required forms, which petitioner had to photocopy in another municipality.7 [Ibid., 8-9.]

On May 15, 1998, the MBC rejected petitioner’s objections, finding that the affidavits submitted by petitioner were not sufficient to support his allegations that they were prepared under duress and giving more weight to the affidavits executed by the BEI.8 [Ibid., 187.] Petitioner appealed to the Comelec and on June 8, 1998, public respondent’s Second Division denied petitioner’s appeal and directed the MBC to reconvene and include in the canvass the 37 election returns and, thereafter, proclaim the winning candidate. Its disquisition was as follows –

Petitioner received the Comelec’s order on June 17, 1998. The following day, on June 18, 1998, upon the receipt of a telegram sent by the Comelec, the MBC proclaimed Sanchez as the winning candidate. On June 22, 1998, petitioner filed a motion for reconsideration of the Second Division’s order, with an additional prayer for the annulment of the proclamation of Sanchez. However, on September 1, 1998 the Comelec en banc denied petitioner’s motion. Hence, this special civil action, wherein petitioner raises the following issues –

The petition is without merit.

The Code provides that 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, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.11 [Code, sec. 241.]

Section 243 of the Code enumerates the specific issues that may be raised in a pre-proclamation controversy as follows:

In addition to the restrictive and exclusive scope of its subject matter, all pre-proclamation controversies on election returns or certificates of canvass shall be disposed of summarily - first, by the board of canvassers, and then, by the Comelec.12 [Republic Act No. 7166 –

SEC. 18. Summary Disposition of Pre-proclamation Controversies. - All pre-proclamation controversies on election returns or certificates of canvass shall, on the basis of the records and evidence elevated to it by the board of canvassers, be disposed of summarily by the Commission within seven (7) days from receipt thereof. Its decisions shall be executory after the lapse of seven (7) days from receipt by the losing party of the decision of the Commission.

(b) Upon receipt of any such objection, the board of canvassers shall automatically defer the canvass of the contested returns and shall proceed to canvass the returns which are not contested by any party.

(f) After all the uncontested returns have been canvassed and the contested returns 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.

The decision of the Commission shall be executory after the lapse of seven (7) days from receipt 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 objections 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.] It is a well-entrenched rule in jurisprudence that, in a pre-proclamation controversy, the board of canvassers and the Comelec are not to look beyond or behind election returns which are on their face regular and authentic returns. In such summary proceedings, there is no room for the presentation of evidence aliunde, the inspection of voluminous documents, and for meticulous technical examinations which take up considerable time. A party seeking to raise issues the resolution of which would compel or necessitate the Comelec to pierce the veil of election returns which are prima facie regular on their face, has his proper remedy in a regular election protest.13 [Matalam vs. Comelec, 271 SCRA 733 (1997); Loong vs. Comelec, 257 SCRA 1 (1996); Dimaporo vs. Comelec, 186 SCRA 769 (1990); Dipatuan vs. Comelec, 185 SCRA 86 (1990).]

The legislative intent behind the summary disposition of pre-proclamation controversies is to give life to the policy that the canvass and proclamation be delayed as little as possible for it is in the public interest that the position for which the election was held should be filled promptly, even though the proclamation of the winning candidates be provisional in nature, in that the same may still be subject to the results of the election protests that may be subsequently filed.14 [Dimaporo vs. Comelec, supra note 13; Dipatuan vs. Comelec, supra note 13.] Also, the boards of canvassers, particularly municipal, city and provincial, before whom such pre-proclamation controversies are initiated, are merely ad hoc bodies, existing only for the interim task of canvassing election returns and thus, do not have the facilities, the time, nor the competence to hear, examine and decide on alleged election irregularities, unlike regular courts, the Comelec or the electoral tribunals (Presidential, Senate, and House) which are regular agencies of the government tasked and equipped for the purpose.15 [Matalam vs. Comelec, supra note 13.]

In order to justify his objection to the inclusion of the 74 election returns in the canvassing, petitioner alleged the following election irregularities - (1) Sanchez replaced some members of the BEI with her relatives and sympathizers; (2) the respective assignments of the other BEI members were changed without prior approval by the Comelec; (3) after the voting, the members of the BEI were instructed to bring to Uson Central School the ballot boxes for a centralized counting despite the fact that the elections were peaceful and orderly and hence, there was no need to transfer the venue of the counting of the ballots; (4) that, considering the distance of some barangays from Uson, it took several hours for the ballot boxes to reach the school, during which time many irregularities could have transpired, destroying the sanctity of the ballot boxes; (5) during the counting of the ballots and the preparation of the returns, Sanchez and her fully armed bodyguards entered the polling places and spoke with the members of the BEI who, due to very strong fear for their lives, were forced to disregard the ballots and instead to favor Sanchez, giving her a wide margin over petitioner; (6) Sanchez, together with her relatives and supporters, observed the proceedings before the BEI, resulting in the intimidation of the members thereof; (7) Sanchez’ bodyguards threatened petitioner’s watchers in order to prevent them from performing their functions; and (8) some members of the MBC were forced by Sanchez’ bodyguards to immediately proclaim Sanchez. In support of his allegations, petitioner submitted the affidavits of members of the BEI and of his own supporters16 [Petitioner’s memorandum, 9-13.] and a certified true copy of an excerpt from the blotter of the Uson Police Department.17 [Rollo, 41, 186.]

The only issue raised by petitioner which may possibly be the subject of a pre-proclamation controversy is the entry of Sanchez and her armed bodyguards in the polling places during the counting of ballots and the preparation of the election returns, which allegedly caused the intimidation and undue influence of the members of the BEI, resulting in the "sudden and radical change" in the election returns.18 [Ibid., 20.] This would appear to fall under section 243 (c) of the Code, which provides that one of the issues properly pertaining to a pre-proclamation controversy is that -

However, petitioner does not claim that there are any defects or irregularities apparent from a physical inspection of the election returns. Neither did the MBC nor the Comelec make any finding that the returns contained any palpable errors or material defects. To prove the intimidation which petitioner asserts was exerted upon the members of the BEI by Sanchez and her supporters would require the reception of evidence aliunde in a full-blown proceeding, wherein the parties are permitted to file pleadings and to introduce the testimonies of their witnesses and other documentary evidence to substantiate their allegations before the proper tribunal. Such election irregularities cannot be proven in a summary proceeding like a pre-proclamation controversy, but rather should be properly raised in an election protest.

In the recent case of Salih vs. Comelec,19 [279 SCRA 19 (1997).] we held that returns will not be excluded on the mere allegations that the returns are manufactured or fictitious when the returns, on their face, appear regular and wanting of any physical signs of tampering, alteration, or other similar vice. Thus, if there had been sham voting or minimal voting which was made to appear as normal through the falsification of the election returns, such grounds are properly cognizable in an election protest and not in a pre-proclamation controversy.

And in Matalam vs. Comelec,20 [Supra note 13.] the Court, in rejecting petitioner’s claims that the election returns were spurious, obviously manufactured and prepared under irregular circumstances, explained that

Petitioner claims that the proclamation of Sanchez was premature since, at the time of such proclamation, the Comelec’s June 8, 1998 order was not yet final and executory pursuant to paragraphs (h) and (i) of section 20 of RA 7166 which provides –

xxx xxx xxx

Petitioner also cites sections 13, Rule 18 and section 2, Rule 19 of the Comelec Rules of Procedure which states as follows-

xxx xxx xxx

xxx xxx xxx

According to petitioner, since he received the Comelec’s June 8, 1998 order only on June 17, 1998, the same attained finality and may be fully executed only on June 24, 1998; that he had five days from receipt of the assailed order to file a motion for reconsideration or until June 22, 1998; and that the proclamation of Sanchez as the winning candidate by the MBC on June 18, 1998 is void ab initio for at the time there was no final judgment which the board could lawfully implement.21 [Petitioner’s Memorandum, 15-18.]

Petitioner also asks this Court to declare that the Comelec committed a reversible error in failing to pass upon his objections to the inclusion of the thirty-seven (37) election returns which he was unable to embody in the prescribed form, as required by section 20 (c) of RA 7166, reasoning that such failure was attributable to the MBC. 22 [Ibid., 19-24.]

In light of our ruling that the electoral irregularities enumerated by petitioner are not proper to a pre-proclamation controversy for so long as the election returns appear to be authentic and duly accomplished on their face, the other issues raised by petitioner have necessarily become moot and academic.23 [Matalam vs. Comelec, supra note 13.] The MBC, in rejecting petitioner’s objections and proclaiming Sanchez, and the Comelec, in upholding the MBC, are entitled to the legal presumption of regularity in the performance of their official functions,24 [Rules of Court, Rule 131, sec.3 (m).] which petitioner has failed to rebut.

Even assuming that petitioner had availed of the proper remedy, still the proclamation of Sanchez by the MBC did not have to await the resolution of his motion for reconsideration by the Comelec en banc since it was validly made upon the authority of the order issued by the Comelec’s Second Division, ordering the MBC to reconvene and include the 37 election returns in the canvass and thereafter, proclaim the winning candidate. In this respect, our ruling in Casimiro vs. Comelec25 [Casimiro vs. Comelec, 171 SCRA 468 (1989).] is squarely in point. We held in this case that the proclamation of the winning candidate by the board of canvassers was authorized by the ruling of the Comelec’s Second Division ordering the board to "reconvene, complete the canvass if not yet completed, and proclaim the winning candidates…" even though such proclamation was made before the filing of the motion for reconsideration with the Comelec en banc.

We wish to stress that our ruling in this case merely sustains the Comelec’s position that, in the absence of "palpable errors and/or material defects [which] are clearly discernible on the faces of these returns," the board of canvassers should include in the canvass the 37 election returns26 [Rollo, 42.] and that, by ruling thus, we have no intention of passing upon the verity of petitioner’s imputations of electoral irregularities and acts of terrorism, which we reiterate is not in issue in a pre-proclamation controversy, but should be resolved in a proper electoral protest.27 [Matalam vs. Comelec, supra note 13.]

WHEREFORE, the instant petition is DISMISSED for petitioner’s failure to demonstrate that public respondent Comelec committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its resolution dated September 1, 1998.