G.R. No. 204828. December 3, 2013.*

JAIME C. REGIO, petitioner, vs. COMMISSION ON
ELECTIONS and RONNIE C. CO, respondents.

Remedial Law; Civil Procedure; Moot and Academic;

The Supreme Court can decide on the merits a moot protest
if there is practical value in so doing, it finds that the
nullification of the COMELEC En Banc’s Resolution is in
order, due to its gross contravention of established rules on
evidence in election protest cases.—Notwithstanding the
mootness of the case, We find the need to decide the
petition on its merits, in view of the finding of the
COMELEC En Banc that protestant Co should have been
declared the winner for the post of punong barangay for the
term 2010-2013. We find that the grave abuse of discretion
committed by the COMELEC En Banc, specifically in
ignoring the rules on evidence, merits consideration. Still in
line with the Court’s decision in Malaluan v. COMELEC,
254 SCRA 397 (1996), to the effect that the Court can
decide on the merits a moot protest if there is practical
value in so doing, We find that the nullification of the
COMELEC En Banc’s Resolution is in order, due to its
gross contravention of established rules on evidence in
election protest cases.

Election Contests; The Supreme Court summarized the

standards to be observed in an election contest predicated on
the theory that the election returns do not accurately reflect
the will of the voters due to alleged irregularities in the
appreciation and counting of ballots.—In Rosal, this Court
summarized the standards to be observed in an election
contest predicated on the theory that the election returns
do not accurately reflect the will of the voters due to alleged
irregularities in the appreciation and counting of ballots.
These guiding standards are: (1) The ballots cannot be used
to overturn the official count as reflected in the election
returns unless it is first shown affirmatively that the
ballots have been preserved with a care which precludes the
opportunity of tampering and suspicion of change,
abstraction or substitution; (2) The burden of proving that
the integrity of the ballots has been preserved in such a
manner is on the protestant; (3) Where a mode of
preserving the ballots is

_______________

* EN BANC.

449

enjoined by law, proof must be made of such substantial

compliance with the requirements of that mode as would
provide assurance that the ballots have been kept inviolate
notwithstanding slight deviations from the precise mode of
achieving that end; (4) It is only when the protestant has
shown substantial compliance with the provisions of law on
the preservation of ballots that the burden of proving actual
tampering or likelihood thereof shifts to the protestee; and
(5) Only if it appears to the satisfaction of the court of
COMELEC that the integrity of the ballots has been
preserved should it adopt the result as shown by the
recount and not as reflected in the election returns.

Election Law; Revision of Ballots; It is only when the

court or the COMELEC is fully satisfied that the ballots
have been well preserved, and that there had been no
tampering of the ballots, that it will accord credibility to the
results of the revision.—The results of the revision will not
automatically be given more weight over the official
canvassing results or the election returns. What happens in
the event of discrepancy between the revision results and
the election returns is that the burden of proof shifts to the
protestee to provide evidence of actual tampering of the
ballots, or at least a likelihood of tampering. It is only when
the court or the COMELEC is fully satisfied that the ballots
have been well preserved, and that there had been no
tampering of the ballots, that it will accord credibility to the
results of the revision.

Same; When the sovereignty of the people expressed thru

the ballot is at stake, it is not enough for the Supreme Court
to make a statement but it should do everything to have that
sovereignty obeyed by all.—This Court had long stated that
“[u]pholding the sovereignty of the people is what
democracy is all about. When the sovereignty of the people
expressed thru the ballot is at stake, it is not enough for
this Court to make a statement but it should do everything
to have that sovereignty obeyed by all. Well done is always
better than well said.” This is really what the Rosal
doctrine is all about. The Rosal doctrine ensures that in
election protest cases, the supreme mandate of the people is
ultimately determined. In laying down the rules in
appreciating the conflicting results of the canvassing and
the results of a revision later made, the Court has no other
intention but to determine the will of the electorate.

450

Same; Election Contests; The duty of the protestee in an

election contest to provide evidence of actual tampering or
any likelihood arises only when the protestant has first
successfully discharged the burden of proving that the
ballots have been secured to prevent tampering or
susceptibility of change, abstraction or substitution.—The
duty of the protestee in an election contest to provide
evidence of actual tampering or any likelihood arises only
when the protestant has first successfully discharged the
burden of proving that the ballots have been secured to
prevent tampering or susceptibility of change, abstraction
or substitution. Such need to present proof of tampering did
not arise since protestant himself failed to provide evidence
of the integrity of the ballots. A candidate for a public
elective position ought to familiarize himself with election
laws, pertinent jurisprudence, and COMELEC resolutions,
rules and regulations. Alternatively, he should have an
experienced and knowledgeable election lawyer to guide
him on the different aspects of elections. Sans competent
legal advice and representation, a victory in the elections
may turn out to be a crushing defeat for the candidate who
actually got the nod of the electorate. Unfortunately for
respondent Co, he committed several miscues that
eventually led to his debacle in the instant election protest.

SPECIAL CIVIL ACTION in the Supreme Court.

Certiorari.
The facts are stated in the opinion of the Court.
  Larrazabal Law Office for petitioner.
  Chang & Padilla Law Office for private
respondent.

VELASCO, JR., J.:

The Case

This Petition for Certiorari filed under Rule 64, in

relation to Rule 65, seeks to nullify and set aside the
Resolution dated December 7, 2012 of the
Commission on Elections (COMELEC) En Banc in
EAC (BRGY-SK) No. 161-2011. The assailed
Resolution reversed and set aside the Resolution of
the COMELEC First Division dated August 23, 2011,
which, in turn, affirmed the May 4, 2011 Decision in
Election Case No.
451

02480-EC of the Metropolitan Trial Court (MeTC),

Branch 4 in Manila.
 The Facts
Petitioner Jaime C. Regio (Regio) and private
respondent Ronnie C. Co (Co), among other
candidates, ran in the October 25, 2010 barangay
elections in Barangay 296, Zone 28, District III of the
City of Manila for the position of punong barangay.
Immediately following the counting and
canvassing of the votes from seven clustered precincts
in the adverted barangay, Regio, who garnered four
hundred seventy-eight (478) votes, as against the
three hundred thirty-six (336) votes obtained by Co,
was proclaimed winner for the contested post of
punong barangay. The detailed tally of the votes per
precinct, as reflected in the Statement of Votes, is as
follows:[1]
 

Candidate Clustered Precinct Number Total

  1302A 1304A 1306A 1307A  
1303A 1305A 1307B
Co, Ronnie C. 76 113 48 99 336
Regio, Jaime
171 151 73 83 478
C.

 
On November 4, 2010, Co filed an election protest
before the MeTC. He claimed, among other things,
that the Board of Election Tellers (BET) did not
follow COMELEC Resolution No. 9030, as it: (1) did
not permit his supporters to vote; (2) allowed “flying
voters” to cast votes; and (3) ignored the rules on
appreciation of ballots, resulting in misreading,
miscounting, and misappreciation of ballots.
Additionally, he alleged that Regio committed vote-
buying, and engaged in distribution of sample ballots
inside the polling centers during the day of the
elections.[2]

_______________
 [1] Rollo, p. 70.
[2] Id., at p. 85.

452

Of the seven clustered precincts (CPs) initially

protested, Co would later exclude CP Nos. 1304A and
1305A from the protest. During the preliminary
conference, the trial court allowed the revision of
ballots. The revision of ballots occurred on January
13-14, 2011.[3] Per the report of the revision
committee, the number of votes obtained by both
candidates in the contested precincts, as shown
below, indicated a substantial recovery on the part of
Co:
 

Candidate Clustered Precinct Number Total

  1302A 1304A 1306A 1307A  

1303A 1305A 1307B
Co, Ronnie C. 160 -- 63 98 321

Regio, Jaime
86 -- 62 84 232
C.

 
During his turn to present evidence, Co limited his
offer to the revision committee report, showing that
he garnered the highest number of votes.
Regio, on the other hand, denied that the elections
were tainted with irregularities. He claimed that the
results of the revision are products of post-elections
operations, as the ballots were tampered with,
switched, and altered drastically to change the
results of the elections. He presented as witnesses the
following: poll watchers Evangeline Garcia, Cezar
Regio, and Ruben Merilles, who all testified that
there were no instances of electoral fraud,
irregularities, and anomalies during the day of the
elections. Presented too were volunteers Love Agpaoa
and Romy Que, who belied allegations of
miscounting, misreading, and misappreciation of the
ballots during the counting, and Dominador Dela
Cruz, Chairperson of the BET for CP Nos.
1302A/1303A, as well as Erlina Hernandez,
Chairperson of the BET for CP No. 1306A, who both
testified that they followed the rules and regulations
in con-

_______________
[3] Id., at p. 71.

453

ducting the elections in Barangay 296, and that each

ballot was correctly tabulated.[4]
The results of the revision notwithstanding, the
trial court, in its Decision of May 4, 2011, dismissed
Co’s protest and declared Regio as the duly-elected
punong barangay of Barangay 296. It disposed of the
case, as follows:

WHEREFORE, the proclamation of protestee Jaime C.

Regio as the duly elected “Punong Barangay” or “Barangay
Chairman” of Barangay 296, District III, Manila by the
Barangay Board of Canvassers is affirmed by this court.
The election protest filed by the protestant Ronnie C. Co is
dismissed for lack of merit.[5]

According to the trial court, before it can accord

credence to the results of the revision, it should first
be ascertained that the ballots found in the box
during the revision are the same ballots deposited by
the voters. In fine, the court “should first be
convinced that the ballots counted during the revision
have not been tampered with before it can declare the
ballots a) as superior evidence of how the electorate
voted, and b) as sufficient evidence to set aside the
election returns. For the ballots to be considered the
best evidence of how the voters voted, their integrity
should be satisfactorily established.”[6]
 Invoking Rosal v. COMELEC,[7] the trial court
ruled that Co failed to sufficiently show that the
integrity of the contested ballots had been preserved.
It then cited the presumption that election returns
are genuine, and that the data and information
supplied by the board of election inspectors are true
and correct.[8] The trial court said:

_______________
[4] Id., at pp. 71-72.
[5] Id., at p. 83.
[6] Id., at p. 73.
[7] G.R. Nos. 168253 & 172741, March 16, 2007, 518 SCRA 473.
[8] Cf. RULES OF PROCEDURE IN ELECTION CONTESTS BEFORE THE

COURTS INVOLVING ELECTIVE MUNICIPAL AND BARANGAY OFFICIALS, Rule

13, Sec. 6.

454

A closer scrutiny of the premise made by the protestant

will reveal that he is trying to prove the misreading,
miscounting, and misappreciation of ballots by introducing
as evidence the marked difference of the results of the
revision and of the results in the election returns. This
premise is too presumptuous. The marked difference cannot
be used to prove the misreading, miscounting, and
misappreciation of ballots because the misreading,
miscounting, and misappreciation of ballots is precisely
what the protestant needs to prove to justify the marked
difference in the results. Prudence dictates that the
protestant should first explain where this huge discrepancy
is coming from before using it as evidence. In other words,
the misreading, miscounting, and misappreciation of ballots
should be proven by other independent evidence.
Without any evidence, the allegation of misreading,
miscounting, and misappreciation of ballots remains a mere
allegation without any probative value.[9]
 Traversing the allegations of post-elections
tampering, the trial court rejected Co’s allegation
that the ballot boxes were properly locked and sealed.
In fact, the trial court said, the envelope containing
the ballots for CP Nos. 1302A/1303A was glued on
both sides, prompting protestee’s revisor to comment
that the envelope appears to be re-pasted and
tampered. In CP No. 1306A, the report stated that
the ballots were not placed in a sealed envelope.[10]
Corollarily, the trial court stated the observation
that Regio has presented credible witnesses to prove
that there were no irregularities or anomalies during
the casting and counting of votes.
Aggrieved, Co filed an appeal before the
COMELEC, arguing that the trial court erred:

_______________
[9] Rollo, pp. 75-76.
[10] Id., at p. 77.

455

1.) In disregarding the result of the physical count of the

revised ballots found in Precinct Nos. 1302A/1303A and
1306A;
2.) In declaring that the protestant appellant was not able
to sufficiently show that the integrity of the contested
ballots in Precinct Nos. 1302A/1303A and 1306A was
preserved;
3.) In declaring that protestant-appellant was not able to
overcome the presumption of regularity of the election,
counting, and canvassing proceedings in the protested
precincts of Barangay 296, Manila;
4.) In declaring that the votes obtained by the parties in
Precinct Nos. 1302A/1303A and 1306A as reflected in
their respective Election Returns are [the] true and
actual results of the elections;
5.) In giving weight to the incredulous and conflicting
testimonies of the obviously biased witnesses of the
 protestee-appellee;
6.) In refusing to lend credence to the testimony of the
expert witness from the Commission on Elections that
the ballots obtained from Precinct Nos. 1302A/1303A
and 1306A are genuine ballots; and
7.) In refusing to appreciate the contested and revised
ballots for Precinct Nos. 1302A/1303A and 1306A and
the appreciation of the contested ballots found in
Precinct No. 1307A/1307B.[11]

In a Resolution dated August 23, 2011, the

COMELEC First Division[12] dismissed the appeal,
noting, as the MeTC did, that Co failed to show that
the integrity of the ballots in question was in fact
preserved. Echoing the trial court, the COMELEC
First Division ruled that the absence of any report or
record of tampering of the ballot boxes does not
preclude

_______________
[11] Id., at pp. 87-88.
[12] Composed of Commissioners Rene V. Sarmiento, Armando
C. Velasco, and Christian Robert S. Lim.

456

the possibility of ballot tampering.[13] It also affirmed

the rejection of Co’s reliance on the revision
committee report as proof that no post-election
tampering occurred. The COMELEC First Division
observed:

We note that protestant-appellant did not offer any

evidence to prove his claims of misreading, miscounting,
and misappreciation of the ballots; he posits that the
variance between the election results according to the
election documents and the revision of the ballots is in itself
enough to prove his allegations of misreading, miscounting,
and misappreciation of the ballots by the Board of Election
Tellers. Protestant-appellant begs the question instead of
laying support to his claims.
xxxx
Since it could not divine the will of the electorate from
the ballots, the trial court had no other recourse other than
to rely on the available election documents. And, We cannot
fault the trial court for doing so when there was no question
as to the election documents’ authenticity and validity.
Protestant-appellant harps that the election documents
are “mere by-products of the electoral fraud committed to
benefit (protestee-appellee) including but not limited to
misreading, miscounting, and misappreciation of
ballots by the Chairpersons of the Board of Election
Tellers in order to increase the votes of the
Protestee-Appellee and decrease the votes that
should have been properly credited to Protestant-
Appellant Co.” (emphasis in the original)
As previously mentioned, protestant-appellant’s
assertion is specious x x x. The records of the case is bereft
of any evidence supporting protestant-appellant’s claims of
electoral fraud and, thus, We concur with the trial court
stating, “(w)ithout any evidence, the allegation of
misreading, miscounting, and misappreciation of ballots
remains a mere allegation without probative value.”[14]

_______________
[13] Rollo, p. 90.
[14] Id., at pp. 91-93.

457

The COMELEC First Division noted that Co could

have, but did not, presented testimonies of witnesses
to substantiate his claims of electoral fraud, albeit he
attached affidavits of various witnesses in his protest.
The affidavits, the COMELEC First Division said,
asserted, in one form or another, the electoral
malfeasance or misfeasance allegedly committed by
the BET. In dismissing the arguments of Co for his
failure to present evidence, the COMELEC
commented, “[I]t appears that protestant-appellant
[Co] rested on laurels after seeing the result of the
physical count of the revised ballots and the
conclusion of the Technical Examination. In fine,
protestant-appellant proverbially lost the war for
want of a nail.”[15] The fallo of the COMELEC First
Division Resolution reads:

WHEREFORE, premises considered, the Commission

(First Division) RESOLVED, as it hereby RESOLVES, to
DENY the protestant’s Appeal for LACK OF MERIT. The
Decision dated 04 May 2011 by Metropolitan Trial Court —
Branch 04 City of Manila is hereby AFFIRMED.[16]

Co then filed a Motion for Reconsideration. In its

assailed December 7, 2012 Resolution, the
COMELEC En Banc[17] reconsidered the August 23,
2011 Resolution of the First Division, and accordingly
declared Co as the duly elected punong barangay.
Vital to the En Banc’s disposition is its finding that
the ballots subjected to revision were genuine. The
En Banc found:

_______________
[15] Id., at p. 95.
[16] Id., at p. 96.
[17] Signed by Chairperson Sixto S. Brillantes, Jr.,
Commissioners Rene V. Sarmiento, Lucenito N. Tagle, Elias
Yusoph, and Maria Gracia Cielo M. Padaca. Commissioners
Armando C. Velasco and Christian Robert S. Lim dissented and
voted to affirm the Resolution of the First Division.

458

x  x  x [W]e find merit in appellant’s motion for

reconsideration. For, protestant [Co] has sufficiently
established that no untoward incident had attended the
preservation of the ballots after the termination of the
proceedings of the Board of Election Tellers or from the
time the custody of the ballot boxes is transferred from the
BET to the City Treasurer and finally to the trial court.
Protestee who cried post-election fraud is duty-bound to
establish that the genuine ballots found inside the boxes
were compromised and tampered at any time during that
period and before the revision. However, no such proof has
been adduced by protestee except the discrepancy between
the figures in the ERs and the physical count on revision.
But then, said discrepancy could have been caused by
errors in the transposition of the numbers from the ballots
to the ERs during the canvassing and not due to tampering.
As earlier intimated, the discrepancy could be attributed
to ER manipulation during the canvassing and not because
of the tampering of the ballots which were already found by
an expert and independent body to be genuine and
authentic.[18]

The fallo of the COMELEC En Banc’s Resolution

reads:

WHEREFORE, premises considered, the Commission

RESOLVED as it hereby RESOLVES to reconsider its
Resolution dated August 23, 2011 and proclaim protestant-
appellant as the duly elected Punong Barangay of
Barangay 296, District III, Manila.[19]

Thus, the present recourse, on the argument that

the COMELEC En Banc committed grave abuse of
discretion amounting to lack or excess of jurisdiction
when it arbitrarily set aside the Decision of the MeTC
and the Resolution of the COMELEC First Division,
in the choice between the revision results in the
protested precincts and the official vote count

_______________
[18] Rollo, pp. 59-60.
[19] Id., at p. 69.
 459

recorded in the election returns. Petitioner further

argues that the COMELEC gravely abused its
discretion when it demanded from protestee direct
proof of actual tampering of ballots to justify
consideration of the use of the election returns in
determining the winning candidate in the elections.
In fine, petitioner questions the ruling of the
COMELEC giving precedence to the results of the
revision over the official canvassing results.

The Issues

I.
WHETHER THE RESPONDENT COMMISSION
COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
IN RULING THAT PRIVATE RESPONDENT CO HAD
SUCCESSFULLY DISCHARGED THE BURDEN OF
PROVING THE INTEGRITY OF THE BALLOTS
SUBJECTED TO REVISION.
II.
WHETHER THE RESPONDENT COMMISSION
COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
IN REVERSING THE RULING OF THE COMELEC
FIRST DIVISION, TO THE EFFECT THAT PETITIONER
REGIO IS THE DULY-ELECTED PUNONG BARANGAY.

The Court’s Ruling

At the outset, it must be noted that the protest

case is dismissible for being moot and academic. A
case becomes moot when there is no more actual
controversy between the parties or no useful purpose
can be served in passing upon the merits. Generally,
courts will not determine a moot question in a case in
which no practical relief can be granted.[20] In
Malaluan
_______________
[20] Baldo v. COMELEC, G.R. No. 176135, June 16, 2009, 589
SCRA 306, 311.

460

v. COMELEC,[21] this Court settled the matter on

when an election protest case becomes moot and
academic:

When the appeal from a decision in an election case has

already become moot, the case being an election protest
involving the office of mayor the term of which had
expired, the appeal is dismissible on that ground, unless
the rendering of a decision on the merits would be of
practical value. (emphasis added)

In the case now before the Court, the position

involved is that of a punong barangay. The governing
law, therefore, is Republic Act No. (RA) 9164, as
amended by RA 9340. Sec. 4 of the law states:

Sec. 4. Assumption of Office.—The term of office of the

barangay and sangguniang kabataan officials elected under
this Act shall commence on August 15, 2002, next following
their elections. The term of office of the barangay and
sangguniang kabataan officials elected in the October 2007
election and subsequent elections shall commence at
noon of November 30 next following their election.
(emphasis added)

The court takes judicial notice of the holding of

barangay elections last October 28, 2013. Following
the elections, the new set of barangay officials
already assumed office as of noon of November 30,
2013. It goes without saying, then, that the term of
office of those who were elected during the October
2010 barangay elections also expired by noon on
November 30, 2013. In fine, with the election of a new
punong barangay during the October 28, 2013
elections, the issue of who the rightful winner of the
2010 barangay elections has already been rendered
moot and academic.
Notwithstanding the mootness of the case, We find
the need to decide the petition on its merits, in view
of the finding

_______________
[21] 324 Phil. 676, 683; 254 SCRA 397, 403-404 (1996).

461

of the COMELEC En Banc that protestant Co should

have been declared the winner for the post of punong
barangay for the term 2010-2013. We find that the
grave abuse of discretion committed by the
COMELEC En Banc, specifically in ignoring the rules
on evidence, merits consideration. Still in line with
the Court’s decision in Malaluan[22] to the effect that
the Court can decide on the merits a moot protest if
there is practical value in so doing, We find that the
nullification of the COMELEC En Banc’s Resolution
is in order, due to its gross contravention of
established rules on evidence in election protest
cases.
We shall discuss the issues jointly, related as they
are to the finding of the COMELEC En Banc giving
primacy to the results of the revision proceedings
over the results of the canvassing as reflected in the
election returns.
The doctrine in Rosal v. COMELEC[23]
and considering the results of the
revision vis-à-vis the results reflected
in the official canvassing

In Rosal, this Court summarized the standards to

be observed in an election contest predicated on the
theory that the election returns do not accurately
reflect the will of the voters due to alleged
irregularities in the appreciation and counting of
ballots. These guiding standards are:
(1) The ballots cannot be used to overturn the
official count as reflected in the election returns
unless it is first shown affirmatively that the ballots
have been preserved with a care which precludes the
opportunity of tampering and suspicion of change,
abstraction or substitution;
(2) The burden of proving that the integrity of the
ballots has been preserved in such a manner is on the
protestant;

_______________
[22] Id.
[23] Supra note 7.

462

(3) Where a mode of preserving the ballots is

enjoined by law, proof must be made of such
substantial compliance with the requirements of that
mode as would provide assurance that the ballots
have been kept inviolate notwithstanding slight
deviations from the precise mode of achieving that
end;
(4) It is only when the protestant has shown
substantial compliance with the provisions of law on
the preservation of ballots that the burden of proving
actual tampering or likelihood thereof shifts to the
protestee; and
(5) Only if it appears to the satisfaction of the
court of COMELEC that the integrity of the ballots
has been preserved should it adopt the result as
shown by the recount and not as reflected in the
election returns.
In the same case, the Court referred to various
provisions in the Omnibus Election Code providing
for the safe-keeping and preservation of the ballots,
more specifically Secs. 160, 217, 219, and 220 of the
Code.
Rosal was promulgated precisely to honor the
presumption of regularity in the performance of
official functions. Following Rosal, it is presumed that
the BET and Board of Canvassers had faithfully
performed the solemn duty reposed unto them during
the day of the elections. Thus, primacy is given to the
official results of the canvassing, even in cases where
there is a discrepancy between such results and the
results of the revision proceedings. It is only when the
protestant has successfully discharged the burden of
proving that the
recounted ballots are the very same ones counted
during the revision proceedings, will the court or the
Commission, as the case may be, even consider the
revision results.
Even then, the results of the revision will not
automatically be given more weight over the official
canvassing results or the election returns. What
happens in the event of discrepancy between the
revision results and the election returns is that the
burden of proof shifts to the protestee to provide
evidence of actual tampering of the ballots, or at least
a likelihood of tampering. It is only when the court or
the COME-
463

LEC is fully satisfied that the ballots have been well

preserved, and that there had been no tampering of
the ballots, that it will accord credibility to the results
of the revision.
In Varias v. COMELEC, the Court said:

The Rosal ruling, to be sure, does not involve issues

merely related to the appreciation or calibration of
evidence; its critical ruling is on the propriety of relying on
the revision of ballot results instead of the election returns
in the proclamation of a winning candidate. In deciding this
issue, what it notably established was a critical guide in
arriving at its conclusion — the need to determine whether
the court or the COMELEC looked at the correct
considerations in making its ruling.[24]

This Court had long stated that “[u]pholding the

sovereignty of the people is what democracy is all
about. When the sovereignty of the people expressed
thru the ballot is at stake, it is not enough for this
Court to make a statement but it should do
everything to have that sovereignty obeyed by all.
Well done is always better than well said.”[25] This is
really what the Rosal doctrine is all about. The Rosal
doctrine ensures that in election protest cases, the
supreme mandate of the people is ultimately
determined. In laying down the rules in appreciating
the conflicting results of the canvassing and the
results of a revision later made, the Court has no
other intention but to determine the will of the
electorate.
The Rosal doctrine is also supplemented by A.M.
No. 07-4-15-SC,[26] establishing the following
disputable presumptions:

_______________
[24] G.R. No. 189078, February 11, 2010, 612 SCRA 386, 407.
[25]  Pangandaman v. COMELEC, G.R. No. 134340, November
25, 1999, 319 SCRA 287.
[26]  RULES OF PROCEDURE IN ELECTION CONTESTS BEFORE THE

COURTS INVOLVING ELECTIVE MUNICIPAL AND BARANGAY OFFICIALS, took

effect on May 15, 2007.

464

SEC. 6. Disputable presumptions.—The following

presumptions are considered as facts, unless contradicted
and overcome by other evidence:
(a) On the election procedure:
(1) The election of candidates was held on the date and
time set and in the polling place determined by the
Commission on Elections;
(2) The Boards of Election Inspectors were duly
constituted and organized;
(3) Political parties and candidates were duly represented
by pollwatchers;
(4) Pollwatchers were able to perform their functions; and
(5) The Minutes of Voting and Counting contains all the
incidents that transpired before the Board of Election
Inspectors.
(b) On election paraphernalia:
(1) Ballots and election returns that bear the security
markings and features prescribed by the Commission on
Elections are genuine;
(2) The data and information supplied by the members of
the Boards of Election Inspectors in the accountable
forms are true and correct; and
(3) The allocation, packing and distribution of election
documents or paraphernalia were properly and timely
done.
(c) On appreciation of ballots:
(1) A ballot with appropriate security markings is valid;
(2) The ballot reflects the intent of the voter;

465

(3) The ballot is properly accomplished;

(4) A voter personally prepared one ballot, except in the
case of assistors; and
(5) The exercise of one’s right to vote was voluntary and
free. 

Private respondent Co has not

proved that the integrity of the
ballots has been preserved

Applying Rosal, viewed in conjunction with A.M.

No. 07-4-15-SC, this Court rules that the COMELEC
En Banc committed grave abuse of discretion in
ruling that private respondent had successfully
discharged the burden of proving that the ballots
counted during the revision proceedings are the same
ballots cast and counted during the day of the
elections. That is the essence of the second paragraph
in the Rosal doctrine.
It is well to note that the respondent Co did not
present any testimonial evidence to prove that the
election paraphernalia inside the protested ballot
boxes had been preserved. He mainly relied on the
report of the revision committee. There was no
independent, direct or indirect, evidence to prove the
preservation of the ballots and other election
paraphernalia.
This leads Us to no other conclusion but that
respondent Co failed to discharge his burden under
the Rosal doctrine. With no independent evidence to
speak of, respondent Co cannot simply rely on the
report of the revision committee, and from there
conclude that the report itself is proof of the
preservation of the ballots. What he needs to provide
is evidence independent of the revision proceedings.
Without any such evidence, the Court or the
COMELEC, as the case may be, will be constrained to
honor the presumption established in A.M. No. 07-4-
15-SC, that the data and information supplied by the
members of the Boards of Election Inspectors in the
accountable forms are true and correct.
466

Respondent Co admits having, under the Rosal

doctrine, the burden of proving the preservation of
the ballots, and corollarily, that their integrity have
not been compromised before the revision
proceedings. He, however, argues that he had
successfully discharged that burden. And how? First,
he pointed out that from the moment the various
BETs placed the counted official ballots inside the
ballot boxes until they were transported for
canvassing, and until they were transmitted to the
Election Officer/City Treasurer of Manila for storage
and custody, no irregularities or ballot box snatching
were reported; neither was there any news or record
of ballot box tampering in the protested precincts.
Second, no untoward incident or irregularity which
may taint or affect the integrity of the ballot boxes
was ever reported when they were transported to the
storage area of the trial court. Third, the storage
place of the ballot boxes was at all times tightly
secured, properly protected, and well safeguarded.
Fourth, all the protested ballot boxes were properly
locked and sealed. Fifth, the petitioner never
questioned or raised any issue on the preservation of
the integrity of the protested ballot boxes. And sixth,
the Technical Examination Report signed by the
COMELEC representative confirmed the
genuineness, authenticity, and integrity of all the
ballots found during the revision.[27]
We hold, however, that the foregoing statements
do not, by themselves, constitute sufficient evidence
that the ballots have been preserved. Respondent Co
cannot simply rely on the alleged absence of evidence
of reports of untoward incidents, and from there
immediately conclude that the ballots have been
preserved. What he should have presented are
concrete pieces of evidence, independent of the
revision proceedings that will tend to show that the
ballots counted during the revision proceedings were
the very same ones counted by the BETs during the
elections, and the very same ones cast

_______________
[27] Private Respondent Ronnie Co’s Comment to the Petition,
pp. 5-7, Rollo, pp. 143-145.

467
by the public. He cannot evade his duty by simply
relying on the absence of reports of untoward
incidents that happened to the ballot boxes. At best,
this reliance on the condition of the ballot boxes
themselves is speculative; at worst, it is self-serving.
Without presenting to the court any evidence outside
of the proceedings, respondent Co as protestant may
simply claim that the ballot boxes themselves are the
proof that they were properly preserved. This goes
contrary to the doctrine in Rosal.
The respective custodians of the ballot boxes, from
the time they were used in the elections until they
were delivered to the court, were not, to stress,
presented in court. They could have testified as to the
security afforded the ballot boxes while in their
custody. Moreover, no witness at all was presented by
respondent Co during the proceedings in the trial
court. The Court reminds respondent Co that the trial
court’s consideration of the case is confined to
whatever evidence is presented before it. This is
amply stated in Rule 13, Sec. 2 of A.M. No. 07-4-15-
SC:

Sec. 2. Offer of evidence.—The court shall consider no

evidence that has not been formally offered. Offer of
evidence shall be done orally on the last day of hearing
allowed for each party after the presentation of the last
witness. The opposing party shall be required to
immediately interpose objections thereto. The court shall
rule on the offer of evidence in open court. However, the
court may, at its discretion, allow the party to make an
offer of evidence in writing, which shall be submitted
within three days. If the court rejects any evidence offered,
the party may make a tender of excluded evidence.

Unfortunately for respondent Co, the witnesses

whose affidavits he attached to his Protest were
never presented during trial. While he again raised
the tenor of these affidavits in his Comment filed
before Us, those cannot be considered anymore due to
his failure to present them before the trial court.
Respondent cannot simplistically insist on the
consideration of

468

said affidavits, the trial court not having been given

the opportunity to observe their testimonies, and
petitioner not having been accorded the opportunity
to cross-examine them. The fact that respondent
attached the affidavits in his Protest does not mean
that the trial court is bound to consider them,
precisely because they have not been formally offered
before the court. The attachments to the Protest will
not be considered unless formally offered.
The Court notes that respondent Co has offered no
explanation whatsoever why he failed to present his
witnesses. Nevertheless, he would have this Court
consider as evidence their purported testimonies.
This would be incongruously unfair to petitioner, who
endeavored to prove his case by presenting evidence
before the trial court.
Neither can respondent Co disclaim responsibility
on the argument that the petitioner never raised as
an issue the preservation of the ballot boxes. Inherent
in all election protest cases is the duty of the
protestant to provide evidence of such preservation.
The failure of the protestee to raise that as an issue
will not ipso facto mean that protestant need not
present evidence to that effect.
Moreover, the Technical Examination Report, is
not, without more, evidence of preservation. The
Report merely states that the ballots are genuine.
What the protestant should endeavor to prove,
however, in presenting evidence of preservation, is
not that the ballots themselves are genuine or official,
but that they are the very same ones cast by the
electorate. The Report cannot possibly determine
that. While it may be that the ballots themselves are
official ballots, there is still a dearth of evidence on
whether or not they were the same official ballots cast
by the public during the elections. The Report,
therefore, cannot be considered as evidence of the
preservation, as required by Rosal.
The fact of preservation is not, as respondent Co
claims, “incontrovertible.” In fact, there is total
absence of evidence to that effect. The
incontrovertible fact is that private respon-

469

dent, during the proceedings before the trial court,

did not present any independent evidence to prove his
claim. Without any independent evidence, the trial
court, the COMELEC, as well as this Court, is
constrained to affirm as a fact the disputable
presumption that the ballots were properly counted
during the counting and canvassing of votes.
In sum, We find that the COMELEC gravely
abused its discretion in ruling that private
respondent had discharged the burden of proving the
integrity of the ballots. We rule, on the contrary, that
there is utter lack of evidence to that effect.
Petitioner need not prove actual
tampering of the ballots

Corollarily, the COMELEC En Banc had ruled

that petitioner, as protestee, failed to adduce evidence
that the ballots found inside the ballot boxes were
compromised and tampered. This strikes us as
baseless and a clear departure from the teachings of
Rosal.
The duty of the protestee in an election contest to
provide evidence of actual tampering or any
likelihood arises only when the protestant has first
successfully discharged the burden of proving that
the ballots have been secured to prevent tampering or
susceptibility of change, abstraction or substitution.
Such need to present proof of tampering did not arise
since protestant himself failed to provide evidence of
the integrity of the ballots.
A candidate for a public elective position ought to
familiarize himself with election laws, pertinent
jurisprudence, and COMELEC resolutions, rules and
regulations. Alternatively, he should have an
experienced and knowledgeable election lawyer to
guide him on the different aspects of elections. Sans
competent legal advice and representation, a victory
in the elections may turn out to be a crushing defeat
for the candidate who actually got the nod of the
electorate. Unfortunately for respondent Co, he
committed several miscues that eventually led to his
debacle in the instant election protest.
470

WHEREFORE, premises considered, this Petition

for Certiorari is GRANTED. The Resolution dated
December 7, 2012 of the COMELEC En Banc in EAC
(BRGY-SK) No. 161-2011 is hereby NULLIFIED and
SET ASIDE. The Resolution of the COMELEC First
Division dated August 23, 2011, affirming the
Decision in Election Case No. 02480-EC of the MeTC,
Branch 4 in Manila is hereby REINSTATED.
SO ORDERED.

Sereno (CJ.), Carpio, Brion, Bersamin, Del

Castillo, Abad, Villarama, Jr., Perez, Mendoza, Reyes,
Perlas-Bernabe and Leonen, JJ., concur.
Leonardo-De Castro and Peralta, JJ., On official
leave.

Petition granted, resolution of COMELEC En Banc

dated December 7, 2012 nullified and set aside.

Note.—Once a winning candidate has been

proclaimed, taken his oath and assumed office as a
member of the House of Representatives, Commission
 on Elections (COMELEC) jurisdiction over election
contests relating to his election, returns, and
qualifications ends and the House of Representatives
Electoral Tribunal (HRET) own jurisdiction begins;
Court does not have jurisdiction to pass upon the
eligibility of the private respondent who was already
a Member of the House of Representatives at the time
of filing of the petition for certiorari. (Gonzalez vs.
Commission on Elections, 644 SCRA 761 [2011])
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