G.R. No. 189078 February 11, 2010
MAYOR VIRGILIO P. VARIAS, Petitioner, vs. COMMISSION ON ELECTIONS and JOSE “JOY” D. PEÑANO, Respondents.

FACTS

Petitioner Virgilio P. Varias and respondent Jose “Joy” D. Peñano were candidates for Mayor of Alfonso, Cavite in the May 14, 2007 elections. Varias was proclaimed winner with 10,466 votes against Peñano’s 10,225, a margin of 241 votes. Peñano filed an election protest with the Regional Trial Court (RTC), Branch 18, Tagaytay City, alleging various irregularities in 14 precincts, including misappreciation of votes, illegal tallying of votes for Varias, and declaration of valid votes as stray or marked. The RTC issued a precautionary order to safeguard the ballot boxes. After revision, the Revision Committee’s Report showed Peñano garnered more votes than Varias and noted various observations, including objections that ballots were fabricated or substituted, torn envelopes, and missing detachable coupons. Both parties moved for a technical examination by the NBI, which found, among other things, that 82 ballots for Peñano were written by one person, signatures of BEI Chairs on ballots were not by the same person, and 29 ballots had erasures of Varias’s name and superimposition of Peñano’s name. The RTC ruled in favor of Peñano, crediting him with 10,312 votes against Varias’s 10,208, partly based on revision results, disregarding results from one clustered precinct, and deducting votes for being written by one person, written by two persons, or marked. Varias appealed to the COMELEC.

ISSUE

Whether the COMELEC gravely abused its discretion in not following the guidelines in Rosal v. Commission on Elections regarding the appreciation of revision of ballot results against election returns.

RULING

The Supreme Court granted the petition, annulling the COMELEC’s resolutions. The Court held that the COMELEC committed grave abuse of discretion by failing to apply the doctrinal rule in Rosal v. COMELEC. Under Rosal, ballots cannot be used to overturn election returns unless it is affirmatively shown they have been preserved with care precluding tampering, with the burden of proof on the protestant. The protestant must show substantial compliance with the legal mode of preservation, and only then does the burden shift to the protestee to prove actual tampering. The COMELEC erroneously shifted the burden to Varias to prove the ballots’ integrity without first requiring Peñano to show substantial compliance with ballot preservation requirements. The COMELEC also incorrectly relied on the NBI report, which was based on photocopies and not the original ballots, and whose findings were not properly presented or testified to by an expert witness. The integrity of the ballots from the protested precincts was not established, as the RTC itself noted the protestant’s evidence was wanting regarding the manner of preservation. Therefore, the revision results could not overturn the election returns, and Varias’s proclamation as winner must stand.