RESOLVED:

1. to file an Information against PES Vitaliano Fabros, Provincial Prosecutor Pacifico Paas, and Division Schools Superintendent Olympia Marquez, Chairman, Vice-Chairman, and Member-Secretary, respectively of the provincial Board of Canvassers, Isabela together with its staff members, namely : Dr. Teresita Domalanta, Agripina Francisco, Dante Limon, Edwardo Tamang and George Noriega, before the Regional Trial Court of Isabela for violation of Section 27 (b) of Republic Act No. 6646, the prosecution of which shall be handled by the Chief State Prosecutor Zenon de Guia, with the duty to submit periodic report[s] thereon after every hearing of the case; and

2. to file an administrative complaint against said respondents for grave misconduct, gross dishonesty, and conduct unbecoming public officials to the prejudice of the best interest of the public service;

3. to preventively suspend the respondents for a period of ninety (90) days reckoned from receipt of this resolution.

The instant case stemmed from the alleged irregularity committed by the Provincial Board of Canvassers of Isabela in crediting unauthorized additional votes, thus: (a) Twenty seven thousand seven hundred fifty five (27,755) to Juan Ponce Enrile, (b) Seven thousand (7,000) to Ramon Mitra, and (c) Ten thousand (10,000) to Gregorio Honasan.

After the submission of the counter-affidavits of the respondents, Pimentel filed on September 1, 1995 an amended complaint impleading the members of the staff of the Board namely: Dr. Teresita Domalanta, Agripina Francisco, Dante Limon, Eduardo Tamang and George Noriega, as additional respondents.

Aquilino Pimentel alleged that the unauthorized additional number of votes were included in the total votes for senatorial candidates Enrile, Mitra and Honasan in the Provincial Certificate of Canvass duly signed and thumbmarked by the members of the PBC of Isabela and which same was submitted to the Comelec as National Board of Canvassers which was included in the canvass on which the proclamation was based. In order to prove his charge, complainant submitted in evidence the Certificate of Canvass supported by Statement of Votes per precinct of Santiago City, Municipalities of Angadanan, Cauayan, Cordon, Delfin Albano, Echague, San Mariano, San Pablo, Ilagan and San Mateo. A comparison of the votes indicated in the Statement of Votes by city/municipality and that of the municipal/city Certificate of Canvass was submitted by the complainant which is hereunder reproduced:

In their defense, Provincial Election Supervisor Vitaliano Fabros, Provincial Prosecutor Pacifico Paas and Division Superintendent of Schools Dr. Olympia Marquez, Chairman, Vice-Chairman and Member-Secretary, respectively, of the Provincial Board of Canvassers of Isabela were in unison in vehemently denying the charges imputed against them and declared that they faithfully performed their poll duties assigned to them.

PES Vitaliano Fabros, in his counter-affidavit, asserted that it could not have been possible not to read the actual figures reflected in the municipality/city Certificate of Canvass considering the presence of counsels and watchers of candidates and political parties and if ever there are discrepancies between the city/municipal Certificate of Canvass and that of the Provincial Certificate of Canvass the same may be attributable to human fatigue.

Respondent Pacifico Paas declared that he assumed the opening of the envelopes containing the election returns by municipality and broke the corresponding paper seals and handed the same to the Chairman who in turn assumed the reading of votes through a microphone with the tabulators and recorders reflecting the figures in the Statement of Votes and further declared that he had no direct view over the votes read by Chairman Fabros nor had he interfered save for one or two election returns in the reading. He even vigorously denied any privy (sic) to the discrepancy of the figures indicated in the "Statement of Votes by Municipality" and "Provincial Certificate of Canvass" because he honestly believed that these are the true and faithful reproduction of the figures indicated in the Provincial Board of Canvasser’s copy of the election returns provided them which were used in the canvass.

Respondent Dr. Olympia Marquez stated that it was Chairman Fabros who read the votes obtained by the candidates through an amplifier sound system and correspondingly the recorders tabulated the figures as read into the Statement of Votes by municipality; that she did not so much interfere in the opening of the envelopes and the election returns, nor in the reading of the votes in the duration of the canvassing and that she conveniently sat side by side with the recorders and periodically see to it that votes correspondingly read and announced were faithfully reflected in the Statement of Votes.

Respondents Dr. Teresita Domalanta and Agripina Francisco, in their joint counter-affidavit, categorically denied the charges, and declared that they faithfully recorded the votes obtained by the candidates as read and announced by the Chairman of the Provincial Board of Canvassers and during the recording Dr. Olympia Marquez periodically checked the correctness of the entries in the Tally Sheet for the Statement of Votes; that they recorded the votes obtained by local candidates in some municipalities including senatorial candidates whose surname begins with letter "T" and that they did not participate in the preparation of the Provincial Certificate of Canvass.

Respondents Dante Limon and Eduardo Tamang, in their joint-affidavit, vehemently denied the charges. They claimed that their assigned duty is only to record the names of candidates and their corresponding number of votes obtained as announced by PBC Chairman, Atty. Vitaliano Fabros because they have no access to the votes written in the Municipal Certificate of Canvass.

Respondent George Noriega, in his counter-affidavit likewise denied the charges and averred that he had no direct knowledge in the preparation of the alleged falsified Provincial Certificate of Canvass, and as Tabulator, he only added what was recorded in the Statement of Votes prepared by other persons and denied any participation in the alleged falsification of the Statement of Votes.

1. an information be filed aganst Provincial Election Supervisor Vitaliano Fabros, Provincial Prosecutor Pacifico Paas, and Division Superintendent of Schools Dr. Olympia Marquez, Chairman, Vice- Chairman and Member-Secretary, respectively of the Board of Canvassers of Isabela before the Regional Trial Court Isabela for violation of Section 27 (b) of Republic Act No. 6646 , the prosecution of which shall be handled by Regional Election Director Samuel Barangan of Region II, with the duty to submit periodic progress report[s] after every hearing of the case;

2. an administrative complaint against said respondent for grave misconduct, gross dishonesty, and conduct unbecoming public officials to the prejudice of the best interest of the service; and

3. the cases against Dr. Teresita Domalanta, Agripina Francisco, Dante Limon, Edwardo Tamang and George Noriega be dismissed for insufficiency of evidence to establish a probable cause.

Respondents stand charged with alleged violation of Section 27 (b) of Republic Act No. 6646 which provides:

There is no question there was indeed an increase in the number of votes obtained by senatorial candidates Enrile, Mitra and Honasan which the complainant called it [a] glaring discrepancy. An examination of the Municipal Certificate of Canvass with its Statement of votes per precinct in relation to the Provincial Certificate of Canvass as supported by the Statement of Votes by City/Municipality would show that the votes of the aforementioned candidates were illegally increased in Santiago City and in the nine (9) municipalities of Isabela.

The crucial and pivotal issue for determination in the case at bar is whether or not the respondent’s alleged act of increasing the number of votes garnered by senatorial candidates Enrile, Mitra and Honasan constitutes a violation of Section 27 (b) of Republic Act No. 7168.

By a general overview, in order to have judicious evaluation of the case, it is imperatively necessary to define MISTAKE, NEGLIGENCE and GROSS NEGLIGENCE which may aid in arriving [at] an intelligent findings (sic).

Mistakes, concededly committed by public officers are not actionable without any clear showing that they were motivated by malice or gross negligence amounting to bad faith.4 [Citing Farolan v. Salmac Marketing Corp., 195 SCRA 168 (1991)]

Negligence is the omission to do something which a reasonable man guided by those consideration[s] which ordinarily regulate the conduct of human affairs would do, or the doing of something which a prudent and reasonable man would not do5 [Citing McKee v. IAC, 211 SCRA 517 (1992)] or the failure to observe for the protection of the interest of another person, that degree of precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.6 [Ibid.]

Gross negligence has been defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is [a] duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences insofar as other persons may be affected.7 [Citing Fernando v. Sandiganbayan, 212 SCRA 680 (1992)]

It cannot be disputed that the Certificate of Canvass for senatorial candidates and its supporting statements of votes by municipality and city, are sensitive election documents where the entries therein shall be highly scrutinized.

From the foregoing guidepost, we find the contention of respondents members of the Provincial Board of Canvassers that the erroneous crediting of additional votes to senatorial candidates Enrile, Mitra and Honasan was an honest mistake due to human fatigue, patently not tenable. This is so because there appears to be a pattern as shown in the comparison between the Statement of Votes by Precinct of each of the nine (9) municipalities and one (1) city and the Statement of Votes by Municipality prepared by the Provincial Board of Canvassers, thus, in Santiago City senatorial candidate, Enrile obtained fifteen thousand four hundred fifty four (15,454) as per City Certificate of Canvass while in the Statement of Votes by City prepared by the Provincial Board of Canvassers was sixteen thousand four hundred fifty four (16,454); in the Municipality of Angadanan, senatorial candidates Enrile and Mitra were credited with five thousand nine hundred ninety six (5,996) votes and three thousand eight hundred eight (3,888), respectively, as indicated in Municipal Certificate of Canvass but in the Statement of Votes by Municipality of Cauayan, Enrile and Honasan were credited thirteen thousand seven hundred ten (13,710) and eleven thousand two hundred five (11,205), respectively, while the Statement of Votes by Municipality would show that Enrile got thirteen thousand seven hundred ten (19,710) and Honasan, twenty one thousand two hundred five (21,205); in the Municipality of Cordon, Enrile obtained six thousand seven hundred ninety four (6,794) but in the Statement of Votes by Municipality the number of votes for Enrile was nine thousand seven hundred ninety four (9,794); in the municipality of Delfin Albano, per Municipal Certificate of Canvass Enrile garnered three thousand nine hundred seventy two (3,972) votes while in the Statement of Votes by Municipality Enrile was credited with four thousand nine hundred seventy two (4,972); in the municipality of Echague, Enrile obtained ten thousand five hundred fifty two (10,552) votes as reflected in the Votes by Municipality he was credited with fifteen thousand five hundred fifty two (15,552) votes; and in the Municipality of Ilagan, Mitra was credited with fourteen thousand four hundred fifty seven (14,457) votes but in the Statement of Votes by Municipality, Mitra’s vote was twenty thousand four hundred fifty seven (20,457).

As can be gleaned from the figures shown, save in the municipalities of San Mariano, San Pablo and San Mateo, the last three digits of the number of votes in the Municipal Certificate of Canvass of the other municipalities were retained in the padded votes which will give rise to the presumption that the act was done intentionally and deliberately.

The position proferred by the respondent board members that they cannot be held liable even if the votes reflected in the assailed certificate of canvass do not tally with the figures on the other copies of the Municipal Certificate of Canvass because the copies in the possession of the complainant and any other copies thereof were never used in the provincial canvass, is patently without merit. Neither is the assertion by respondent board members that the offense imputed against them is not mala prohibita but mala in se where criminal intent is material by invoking the ruling of the Court of Appeals in the case of People vs. Sunico, et. al., a valid argument at all.

Based on the facts obtaining in this case, there appears a malice on the part of the members of the board to increase the votes of the three (3) senatorial candidates taking into account the pattern of the distribution of the increase of votes as clearly illustrated above. This illegal act will jibe with the position of the respondents that violation of Section 27 (b) of Rep. Act No. 6646, is mala in se. Besides, what we are proving here is the existence of a prima facie case only, and not a proof beyond reasonable doubt.

IT MUST BE POINTED OUT CLEARLY THAT THE ALLEGED FALSIFIED PROVINCIAL CERTIFICATE OF CANVASS OF ISABELA WAS SEASONABLY RETABULATED OR CORRECTED BY THE COMELEC EN BANC SITTING AS THE NATIONAL BOARD OF CANVASSERS WHICH ABSOLUTELY BELIE THE GRATUITOUS ALLEGATION OF PIMENTEL THAT THE INCREASE OF VOTES WERE INCLUDED IN THE CANVASS AND MADE AS ONE OF THE BASIS IN THE PROCLAMATION OF THE WINNING SENATORIAL CANDIDATES [Capitalization ours]

But notwithstanding that the illegal increase of the votes of Enrile, Mitra and Honasan were retabulated or corrected, the members of the Provincial Board of Canvassers of Isabela are criminally liable to the alleged act committed.

More importantly, A CAREFUL READING OF THE COUNTER-AFFIDAVITS OF OTHER RESPONDENTS ATTY. PACIFICO PAAS, DR. OLYMPIA MARQUEZ INCLUDING THE MEMBERS OF THE STAFF WOULD POINT TO THE CHAIRMAN OF THE BOARD, ATTY. FABROS AS THE SOURCE OF THE DATA RECORDED AND TABULATED. SUCH BEING THE CASE, ABSENT A CLEAR AND CONVINCING PROOF OF CONSPIRACY OR COLLUSION BETWEEN THE RESPONDENTS MEMBERS OF THE PROVINCIAL BOARD AND ITS RESPONDENT STAFFS, THE LATTER CANNOT BE FAULTED ON THE ALLEGED WRONG DOING. The Chairman and the Member Secretary may be indicted for the offense charged as earlier indicated, and the fact that they certified that the entries reflected in the Provincial Certificate of Canvass and Statement of Votes By Municipality were true and correct. However, the exoneration of the tabulators and recorders was further strengthened by the corroborating statement of Member-Secretary Dr. Olympia Marquez when she stated, in her counter-affidavit, that she sat beside the tabulators and recorders in order to see to it that the correct figures are reflected in the Statement of Votes By Municipality.

1.....Minute Resolution No. 96-1616 Finding Conspiracy Among The Members Of The Provincial Board Of Canvassers and the Herein Petitioners Has No Factual Basis and Runs Counter To The Study and Report, Annex "C", Upon Which The Questioned Minute Resolution Was Based.

Hence, Its Issuance Was Attended By Grave Abuse Of Discretion Amounting To Lack Or Excess Of Jurisdiction.

2.....Findings of the Law Department Refers to Members Of The PBOC Only And Does Not Include Petitioners.

3. Findings Of Conspiracy Not Supported By any Evidence.

4.....The Continuous Media Blitzkrieg On "Dagdag-Bawas" And The Attack On The Inside Workings Of The Comelec Terrified Or Terrorized COMELEC Into Including Petitioners In The Charge.

5.....Participation Of Petitioners Limited To Canvass Of Local Officials And Two Senators Starting With The Letter "T" And Does Not Cover Scope Of Instant Complaint Of Atty. Pimentel.

6. The Three (3) Important Documents Upon Which Complaint Was Based Does Not Carry The Signatures Of Movants.

7. Respondent Pimentel, When Informed About The Innocence Of Movants That They Did Not Tally Votes For Enrile, Honasan and Mitra Commented "that is a good point" An Admission Rendering The Case Against Petitioners Dismissible.

8. Overzealousness In The Prosecution Of Election Offenses Must Be Tempered With The Yardstick That The Innocent Must Not Be Victims Of Injustice.

9.....A Serious Review Is an Imperative Necessity To Protect Movants From The Onslaught Of A Public Trial That Carries The Stigma Of Perpetual Embarassment.

10.....Petitioners Are Awardees Of COMELEC Hope I And II And Committing An Anomaly Repugnant To What They Have Taught Is Beyond Their Wildest Dreams.

11.....Petitioner Dr. Domalanta Is A Career Official Of The DECS And Has An Irreproachable Character To Protect And Would Not Do An Act That Will Forever Destroy Her Good Reputation.

12.....The Same is True With Petitioner Dr. Francsico Who Has Just Retired From Public Service As Assistant Division Superintendent.

… Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.14 [Bernas, The Constitution of the Republic of the Philippines, A Commentary, Vol. I, 1987 ed., pp. 86-87.] Other jurisdictions utilize the term man of reasonable caution15 [Brinegar v. U.S., 338 U.S. 160 (1949)] or the term ordinarily prudent and cautious man.16 [Del Carmen, Criminal Procedure, Law and Practice, 3rd ed., p. 86.] The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street.17 [Ibid.] It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibration of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance.

… A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States,18 [338 US 160 (1949)] while probable cause requires more than "bare suspicion", it requires "less than evidence which would justify xxx conviction." A finding of probable cause is not a pronouncement of guilt.19 [Webb v. De Leon, 247 SCRA 652 (1995)]

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

Petitioner categorically charged private respondents xxx with ‘illegal acts of padding the votes of the senatorial candidates’ amounting to ‘violations of the Omnibus Election Code, as amended, and Section 27 of R.A. 6646.’ They never denied that the total number of votes of the senatorial candidate xxx as appearing in the CoCs and SoVs is significantly and considerably higher xxx than that appearing in the election returns. xxx

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 xxx. Probable cause is based neither on clear and convincing evidence of guilt nor evidence establishing absolute certainty of guilt.22 [Pimentel, Jr. v. COMELEC, supra.] 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.23 [Olivarez v. Sandiganbayan, 248 SCRA 700 (1995); Pilapil v. Sandiganbayan, supra.] Considering that private respondents xxx 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 imagination could be dismissed as negligible or inconsequential, there is not merely a strong suspicion that they actually committed the election offense 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.

Certiorari as a special civil action can be availed of only if there is a concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess of jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding. There must be a capricious, arbitrary and whimsical exercise of power for it to prosper.

To question the jurisdiction of the lower court or the agency exercising judicial or quasi-judicial functions, the remedy is a special civil action for certiorari under Rule 65 of the Rules of Court. The petitioner in such cases must clearly show that the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion defies exact definition but generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.