Before Us is a petition for certiorari under Rule 65 seeking the invalidation of the Resolutions, dated January 8, 19981 [Annex "A" of the Petition dated May 8, 1998, Rollo, pp. 28-34. The Resolution was approved for release by Chairman Bernardo P. Pardo and Commissioners Remedios A. Salazar-Fernando, Manolo B. Gorospe, Julio F. Desamito, Teresita Dy-Liacco Flores and Japal M. Guiani.] and March 10, 1998,2 [Annex "B", supra, id. p. 35. The Resolution was approved for release by Chairman Bernardo P. Pardo and Commissioners Manolo B. Gorospe, Julio F. Desamito, Teresita Dy-Liacco Flores, Japal M. Guiani, Evalyn I. Fetalino and Amado M. Calderon.] issued by public respondent Commission on Elections (COMELEC) dismissing, for lack of probable cause, petitioner Aquilino Pimentel’s complaint3 [Docketed as E.O. Case No. 96-1132.] against private respondents Attys. Ligaya Salayon and Antonio Llorente, Chairman and Vice-Chairman, respectively, of the City Board of Canvassers for Pasig City, and Reynaldo San Juan, Campaign Manager of senatorial candidate Juan Ponce Enrile, for decreasing petitioner’s votes in the Statement of Votes (SoVs) per precinct and in the City Certificate of Canvass (CoC)4 [Annex "C", supra, id., p. 36.] for Pasig City.

The following facts are not in dispute:

On May 8, 1995, petitioner ran in the national elections as a candidate for senator. Among others, Anna Dominique M. Coseteng, Juan Ponce Enrile, Marcelo B. Fernan, Gregorio Honasan, Ramon V. Mitra, and Rodolfo G. Biazon also ran as senatorial candidates.

Based on the election returns from all the precincts in Pasig City, the total votes5 [Complaint-Affidavit of petitioner dated September 16, 1996 marked as Annex "E" of the Petition, supra, Rollo, pp. 41-47. The election returns which listed the total votes were attached to said complaint as annexes copies of which, however, do not appear in the Rollo. In any case, respondents did not dispute these figures.] garnered by petitioner and the other abovementioned candidates are as follows:

Said election returns were turned over to the City Board of Canvassers of Pasig City for canvassing.

The Certificate of Canvass (CoC) for Pasig City showed the same aforementioned candidates to have each garnered a different number of votes, viz.:

Said CoC was certified as to the correctness of the entries made therein, by private respondents Salayon and Llorente who signed the same6 [Certificate of Canvass for Pasig City dated May 11, 1995, p. 2, Rollo, p. 37.] and affixed their thumbmarks7 [Ibid.] thereto.

The same private respondents, in their capacity as Chairman and Vice-Chairman of said board, prepared the Statement of Votes (SoVs) for every precinct in Pasig City. Likewise, they certified as to the correctness of the entries made in the SoVs by signing the same and affixing their thumbmarks thereto.

When totalled, the votes reflected in said SoVs as having been garnered by the same candidates above, add to a yet different result, viz.:

In sum, the total votes garnered by said candidates as recorded in the election returns, the CoC, and the SoVs for Pasig City, are as follows:

Based on the election returns, the following increase or decrease in the total number of votes garnered by said candidates is evident:

Significantly, the total number of votes for senatorial candidate Enrile showed a substantial increase of 35,765 while that for petitioner showed a substantial decrease of 4,337 in the CoC and 4,441 in the SoVs. The same pattern was revealed in the way the number of Enrile votes per precinct in some 101 precincts in Pasig City exceeded the total number of voters who actually voted in the May 8, 1995 elections. Only 9,031 voters actually voted, as recorded in the SoVs of said precincts, but the Enrile votes totalled 11,255, broken down as follows:

On September 17, 1996, citing the above discrepancies, petitioner filed with the COMELEC, a Complaint-Affidavit charging private respondents with violation of Section 27 (b) of Republic Act (R.A.) No. 6646, otherwise known as the Electoral Reforms Law of 1987. Petitioner therein alleged, thus:

The complaint was docketed as E.O. 96-1132. All private respondents filed their respective counter-affidavits denying any knowledge of or participation in the recording of vote totals in the CoC and the SoVs that did not match those appearing in the election returns.

On January 8, 1998, the COMELEC promulgated a Resolution dismissing the complaint in this wise:

On February 4, 1998, petitioner filed a motion for reconsideration of the foregoing resolution. However, in Minute Resolution No. 98-0819 dated March 10, 1998, the COMELEC denied said motion.

Hence this recourse to Us via the special civil action of certiorari.

Certiorari lies.

First. Private respondents Salayon and Llorente, in their respective counter-affidavits, did not dispute the conflicting figures reflected in the election returns, the CoC, and the SoVs and instead explained that the discrepancy or error was the result of an honest mistake or oversight due to fatigue and that they only based the entries that they made in the CoC, in turn, on the entries made by the subcommittees in the SoVs.10 [Par. 17 of the Counter-Affidavit dated October 5, 1996 of private respondent Ligaya P. Salayon, Rollo, p. 53; Par. 26 of the Counter-Affidavit dated December 5, 1996 of private respondent Antonio M. Llorente, Rollo, p. 65.]

There is a limit, We believe, to what can be construed as an honest mistake or oversight due to fatigue, in the performance of official duty. The sheer magnitude of the error, not only in the total number of votes garnered by the aforementioned candidates as reflected in the CoC and the SoVs, which did not tally with that reflected in the election returns, but also in the total number of votes credited for senatorial candidate Enrile which exceeded the total number of voters who actually voted in those precincts during the May 8, 1995 elections, renders the defense of honest mistake or oversight due to fatigue, as incredible and simply unacceptable.

At any rate, We already ruled in Pimentel, Jr. v. Commission on Elections11 [289 SCRA 586, 598, 600 (1998)] that the merit of defenses such as honest mistake, simple error, good faith, and the mere performance of ministerial duties, as interposed by persons charged with the election offense of tampering, increasing or decreasing of votes received by a candidate in any election, are best ventilated in the trial proper than at the preliminary investigation.

Second. Section 27 (b) of R.A. No. 6646 which reads, viz.:

penalizes two (2) acts: first, the tampering, increasing, or decreasing of votes received by a candidate in any election; and second, the refusal, after proper verification and hearing to credit the correct votes or deduct such tampered votes.12 [Id., p. 598.] The first obtains in this case.

Petitioner categorically charged private respondents Salayon and Llorente with "illegal acts of padding the votes of the senatorial candidates"13 [Par. 7 of the Affidavit-Complaint dated September 16, 1996 of petitioner, Rollo, p. 45.] amounting to "violations of the Omnibus Election Code, as amended and Sec. 27 of R.A. 6646."14 [Par. 1 of the Affidavit-Complaint, supra, id., p. 41.] They never denied that the total number of votes for senatorial candidate Enrile as appearing in the CoC and SoVs is significantly and considerably higher by 37,402 and 35,765, respectively, than that appearing in the election returns, while the total number of votes for petitioner was substantially decreased by as much as 4,441.

These circumstances, in themselves, constitute probable cause that justifies the belief that more likely than not, the election offense was committed and was committed by private respondents Salayon and Llorente. Probable cause is based neither on clear and convincing evidence of guilt nor evidence establishing absolute certainty of guilt.15 [Pimentel, Jr. v. Commission on Elections, 289 SCRA 586, 601 (1998)] It is merely based on opinion and reasonable belief, and so it is enough that there exists such state of facts as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so.16 [Pilapil v. Sandiganbayan, 221 SCRA 349, 360 (1993); Olivarez v. Sandiganbayan, 248 SCRA 700, 712 (1995)] Considering that private respondents Salayon and Llorente, in invoking the defenses of honest mistake, oversight due to fatigue, and performance of ministerial duties, virtually admitted the existence of the discrepancies in the total number of votes garnered by petitioner and other senatorial candidates, which discrepancies by no stretch of the imagination could be dismissed as negligible or inconsequential, there is not merely a strong suspicion that they actually committed the election offense with which they are charged. The burden of proof appears to have shifted to them to prove that the said discrepancies cannot be considered illegal and criminal.

However, We entertain serious reservation as to the existence of probable cause to indict private respondent San Juan. The only evidence against him is a letter which he wrote and signed on a sheet of the official stationery of the Justice, Peace and Equality Movement which conducted the campaign for senatorial candidate Enrile for the May 1995 elections. The letter reads:

Significantly, the letter is dated May 31, 1995. Whatever private respondent San Juan meant by asking Atty. Marcelo17 [Atty. Armando M. Marcelo, one of the law partners at what used to be the Ponce Enrile Cayetano Reyes and Manalastas Law Offices.] to "take care of Mr. Sean Olaer’s problem with the office of Sen. Nene Pimentel" is not clear. The alleged conspiracy that this letter may, at most, imply, is that private respondent San Juan, Atty. Marcelo and their connections at the COMELEC would be "taking care" of the problem of Olaer regarding acquisition of carbon or certified photocopies of statement of votes per precinct.18 [Pls. see par. 8 (a) of the quoted portion of petitioner’s Affidavit-Complaint.] If at all, the suspicion this letter might have engendered could only be considered a bare,19 [Webb v. De Leon, 247 SCRA 652, 676 (1995)] not strong20 [Pilapil v. Sandiganbayan, supra; Olivarez v. Sandiganbayan, supra.] suspicion which is not a sufficient basis for a finding of probable cause as against respondent San Juan.

WHEREFORE, the instant petition is granted. Respondent COMELEC’s Minute Resolution No. 98-0047 dated January 8, 1998 dismissing the petitioner’s complaint, docketed therein as E.O. No. 96-1132, and Resolution No. 98-0819 dated March 10, 1998 denying petitioner’s motion for reconsideration, are hereby ANNULLED and SET ASIDE.

Respondent COMELEC is hereby ordered to file forthwith with the proper Regional Trial Court the necessary criminal information for violation of Section 27(b) of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, against private respondents Ligaya Salayon and Antonio Llorente.

SO ORDERED.2/28/00 9:29 AM

Davide, Jr., C.J., Bellosillo, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Melo, Puno, and Vitug, JJ., in the result.

Pardo, J., no part in the deliberations. Was COMELEC Chairman at the time.