SO ORDERED.

Ynares-Santiago,*** Peralta,**** Del Castillo and Abad,

JJ., concur.

Judgment reversed and set aside, appellant acquitted.

Note.—As is the case in most rape proceedings, the crux

of the matter revolves around the credibility of the victim
and her testimony. (People vs. Tinsay, 566 SCRA 170
[2008])
——o0o——

G.R. No. 181869. October 2, 2009.*

ISMUNLATIP H. SUHURI, petitioner, vs. THE

HONORABLE COMMISSION ON ELECTIONS (En Banc),
THE MUNICIPAL BOARD OF CANVASSERS OF
PATIKUL, SULU AND KABIR E. HAYUDINI,
respondents.

Election Law; Pre-Proclamation Controversies; Words and

Phrases; Not every question bearing on or arising from the
elections may constitute a ground for a pre-proclamation
controversy.—A pre-proclamation controversy, according to
Section 1, Article XX of the Omnibus Election Code, refers to:
x x x 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 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. Not every question bearing on or arising
from the elections may constitute a ground for a pre-proclamation
controversy. Section 243 of the Omnibus Election Code
enumerates the scope of a pre-proclamation controversy, as
follows: Sec. 243. Issue that

_______________

***  Additional member per Special Order No. 691.

 ****  Additional member per Special Order No. 711.

* EN BANC.

634

may be raised in pre-proclamation controversy—The following

shall be proper issues that may be raised in a pre-proclamation
controversy: (a) Illegal composition or proceedings of the board of
canvassers; (b) The canvassed election returns are incomplete,
contain material defects, appear to be tampered with or falsified,
or contain discrepancies in the same returns or in other authentic
copies thereof as mentioned in Sections 233, 234, 235, and 236 of
this Code; (c) The election returns were prepared under duress,
threats, coercion, or intimidation, or they are obviously
manufactured or not authentic; and (d) When substitute or
fraudulent returns in controverted polling places were canvassed,
the results of which materially affected the standing of the
aggrieved candidate or candidates.
Same; Same; Section 243 of the Omnibus Election Code limits
a pre-proclamation controversy to the questions enumerated
therein; In a pre-proclamation controversy, the Commission on
Elections is restricted to an examination of the election returns and
is without jurisdiction to go beyond or behind the election returns
and to investigate election irregularities.—Section 243, supra,
limits a pre-proclamation controversy to the questions
enumerated therein. The enumeration is restrictive and exclusive.
Resultantly, the petition for a pre-proclamation controversy must
fail in the absence of any clear showing or proof that the election
returns canvassed are incomplete or contain material defects
(Section 234, Omnibus Election Code); or appear to have been
tampered with, falsified or prepared under duress (Section 235,
Omnibus Election Code); or contain discrepancies in the votes
credited to any candidate, the difference of which affects the
result of the election (Section 236, Omnibus Election Code). To be
noted, too, is that in a pre-proclamation controversy, the
COMELEC is restricted to an examination of the election returns
and is without jurisdiction to go beyond or behind the election
returns and to investigate election irregularities. For as long as
the election returns appear to be authentic and duly accomplished
on their faces, the Board of Canvassers cannot look beyond or
behind the election returns in order to verify allegations of
irregularities in the casting or counting of votes.
Same; Same; The mere attendance or presence of formal
defects does not establish the commission of palpable irregularities
in the election returns.—The defects cited by Suhuri were mere
irregularities or formal defects that did not warrant the exclusion
of the affected election returns. Indeed, the mere attendance or
presence of the formal defects did not establish the commission of
palpable irregularities in the election returns. As held in Baterina
v. Commission on Elections, 205 SCRA 1 (1992) the

635

grounds for the exclusion of election returns from the canvassing

as raised by the petitioners’ therein—referring to, among others,
the failure to close the entries with the signatures of the election
inspectors, and the lack of signatures of the petitioners’ watchers,
both involving a violation of the rules governing the preparation
and delivery of election returns for canvassing—did not
necessarily affect the authenticity and genuineness of the subject
election returns as to warrant their exclusion from the
canvassing, being but defects in form insufficient to support the
conclusion that these had been tampered with or spurious.
Same; Same; Judicial Notice; Judicial notice is properly taken
of the fact that the conduct of elections in many parts of this
country, particularly in areas like Patikul, Sulu, often come under
circumstances less than ideal and convenient for the officials
administering the elections—such trying circumstances often lead
to unintended omissions in form similar to those petitioner pointed
out.—We agree with the COMELEC en banc. The actions of the
MBC were reasonable and warranted. Judicial notice is properly
taken of the fact that the conduct of elections in many parts of
this country, particularly in areas like Patikul, Sulu, often come
under circumstances less than ideal and convenient for the
officials administering the elections; and of the fact that the
process of elections usually involves sleepless nights, tiresome
work, and constant dangers to the lives and personal safeties of
the many officials who work to see to it that the elections are
orderly and peaceful and their results are obtained smoothly and
with the least delay. We can easily conclude that such trying
circumstances often lead to unintended omissions in form similar
to those Suhuri pointed out.
Same; Same; Doctrine of Statistical Improbability; Words and
Phrases; The doctrine of statistical improbability is applied only
where the unique uniformity of tally of all the votes cast in favor of
all the candidates belonging to one party and the systematic
blanking of all the candidates of all the opposing parties appear in
the election return.—Under Lagumbay, therefore, the doctrine of
statistical improbability is applied only where the unique
uniformity of tally of all the votes cast in favor of all the
candidates belonging to one party and the systematic blanking of
all the candidates of all the opposing parties appear in the
election return. The doctrine has no application where there is
neither uniformity of tallies nor systematic blanking of the
candidates of one party. Thus, the bare fact that a candidate for
public office received no votes in one or two precincts, standing
alone and without more, cannot adequately support a finding

636

that the subject election returns are statistically improbable.

Verily, a zero vote for a particular candidate in the election
returns is but one strand in the web of circumstantial evidence
that the electoral returns were prepared under duress, force and
intimidation.
Same; Same; Evidence; It would not be trite to emphasize that
the results of an election should not be annulled based on hearsay
evidence.—Police Inspector Panisan’s election report, albeit,
official, would not justify the exclusion of the returns from the
precincts clustered in the Anuling Elementary School.
Concededly, Panisan’s report, being hearsay because he had not
himself actually witnessed the incidents described in the report,
was unreliable and had no value for purposes of Suhuri’s petition-
appeal. It would not be trite to emphasize that the results of an
election should not be annulled based on hearsay evidence.
Same; Actions; Certiorari; In a special civil action for
certiorari, the petitioner carries the burden of proving not merely
reversible error, but grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the public respondent for its
issuance of the impugned order.—In a special civil action for
certiorari, the petitioner carries the burden of proving not merely
reversible error, but grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the public respondent for its
issuance of the impugned order. Grave abuse of discretion is
present “when there is a capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, such as where
the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and it must be so patent
and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.” In other words, the tribunal or
administrative body must have issued the assailed decision, order
or resolution in a capricious or despotic manner.
Same; Commission on Elections; The powers of the
Commission on Elections are essentially executive and
administrative in nature, and this is the reason why the question
of whether or not there were terrorism, vote-buying and other
irregularities in the elections should be ventilated in regular
election protests.—We stress that the powers of the COMELEC
are essentially executive and administrative in nature. This is the
reason why the question of whether or not there were terrorism,
vote-buying and other irregularities in the elections should be
ventilated in regular election protests. The COMELEC is not the
proper forum for deciding such pro-

637

tests. Accordingly, a party seeking to raise issues, the resolution

of which compels or necessitates the COMELEC’s piercing the veil
of election returns that appear prima facie to be regular on their
face, has his proper remedy in a regular election contest.

SPECIAL CIVIL ACTION in the Supreme Court.

Certiorari.
   The facts are stated in the opinion of the Court.
  Edy Lynn S. Santiago for petitioner.
  Brillantes, Navarro, Jumamil, Arcilla, Escolin,
Martinez & Vivero Law Offices for private respondent
Kabir E. Hayudini.

BERSAMIN, J.:
In this special civil action for certiorari, the Court again
determines whether or not the exclusion of certain election
returns from the canvass due to allegations of irregularities
and statistical improbability made by a candidate are
proper grounds for a pre-proclamation controversy by
which to annul the proclamation of his rival as duly-
elected.

The Case

The Municipal Board of Canvassers (MBC) of Patikul,

Sulu had earlier ruled against petitioner Ismunlatip H.
Suhuri’s plea for the exclusion of 25 election returns from
the canvass of votes cast for the 2007 mayoralty race in
Patikul, Sulu and then proclaimed respondent Kabir E.
Hayudini as the duly-elected Mayor. Appealing to the
Commission on Elections (COMELEC), Suhuri insisted on
the invalidity of the proclamation because of the existing
pre-proclamation controversy involving the exclusion of the
25 election returns. The COMELEC, Second Division, had
sustained Suhuri’s appeal and nullified Hayudini’s
proclamation, but the COMELEC en banc reversed the
Second Division through the assailed resolution of January
29, 2008.
Suhuri thus assails on certiorari the January 29, 2008
resolution of the COMELEC en banc that reversed the
resolution of the
638
Second Division.1 He claims that the COMELEC en banc
thereby gravely abused its discretion amounting to lack or
excess of jurisdiction.

Antecedents

Suhuri ran for the position of Municipal Mayor of

Patikul, Sulu during the May 14, 2007 national and local
elections. He was opposed by Hayudini and a third
candidate, Datu Jun Tarsum.2 During the canvassing held
on May 17, 2007 within the Sulu State College in Jolo,
Sulu, Suhuri orally objected to the inclusion of the election
returns from the following 25 precincts, namely: Precincts
09/10A, 11A/12A, 13A/14A, 15A/16A, 17A/18A, 19A/20A,
and 21A/22A of Barangay Anuling; Precincts 47A/48A,
49A/50A, and 51A/52A of Barangay Bongkuang; Precincts
87A/88A, 89A/90A, 91A/92A, 93A/94A, 95A/96A, 97A/98A,
and 99A/100A of Barangay Langhub; Precincts 101A/102A,
103A/104A, 105A/106A, 107A/108A, and 109A/110A of
Barangay Latih; and Precincts 116A/117A, 118A/119A, and
120A of Barangay Maligay. The affected precincts carried a
total of 4,686 votes.3 He later filed with the MBC written
petitions regarding such exclusion on May 17, 18 and 19,
2007.4 He asserted that the 25 election returns were “(1)
[o]bviously manufactured; (2) [t]ampered with or falsified;
(3) [p]repared under duress; and (4) [characterized by]
[s]tatistical improbability.”5
The MBC ruled against Suhuri in the evening of May
19, 2007 by rejecting his objections to the 25 election
returns.6 Then and there, he manifested his intent to
appeal vis-à-vis the ruling. He filed his notice of appeal
shortly thereafter.7 In the same evening,

_______________

1 Rollo, Vol. I, pp. 33-42.

2 Id., at pp. 4-5, 112-113.
3 Id., at p. 9.
4 Id., at pp. 78-102.
5 Id., at p. 8.
6 Id., at p. 75.
7 Id., at p. 76.

639

the MBC proclaimed Hayudini as the duly elected Mayor

for having obtained 7,578 votes as against Suhuri’s 6,803
votes based on a complete canvass of the election returns,
for a margin of 775 votes in favor of Hayudini.8
 On May 23, 2007, Suhuri filed a petition-appeal with the
COMELEC,9 docketed as S.P.C. No. 07-118. The petition-
appeal was assigned to the Second Division.
On May 25, 2007, Suhuri likewise filed an election
protest ad cautelam dated May 21, 2007 in the Regional
Trial Court (RTC) in Patikul, Sulu to contest the results of
the elections for Municipal Mayor of Patikul, Sulu.10 On
June 28, 2007, however, the RTC held the election protest
in abeyance upon Suhuri’s own motion due to his pending
pre-proclamation controversy in S.P.C. 07-118.
In a further move, Suhuri brought a so-called petition to
declare a failure of election with urgent motion to suspend
and/or annul the canvass of the election returns dated May
18, 2007,11 referring to the results from the 25 precincts in
Barangays Anuling, Bongkaung, Langhub, Latih, and
Maligay, all within Patikul, Sulu. However, the COMELEC
en banc denied the petition for insufficiency of evidence on
October 9, 2007.12
On June 12, 2007, the COMELEC, Second Division,
gave due course to Suhuri’s petition-appeal.13
On July 24, 2007, the COMELEC, Second Division,
ruling on Suhuri’s petition-appeal, excluded the 25
questioned electoral returns from the canvass for the
position of Mayor of Patikul, Sulu; and voided the
proclamation of Hayudini as the duly elected Mayor.14

_______________

8 Id., at p. 9.
9 Id., at pp. 66-74.
10 Id., at pp. 194-202.
11 Id., at pp. 112-116.
12 Rollo, Vol. II, pp. 566-570.
13 Rollo, Vol. I, pp. 120-122.
14 Id., at pp. 45-57.

640

    In due course, Hayudini moved for the reconsideration of

the July 24, 2007 ruling of the Second Division.15
Initially resolving Hayudini’s motion for reconsideration,
Commissioners Florentino A. Tuason, Jr. and Nicodemo
Ferrer voted in favor of the resolution of the Second
Division, while Acting Chairman Resurreccion Z. Borra,
Commissioner Romeo A. Brawner and Commissioner Rene
V. Sarmiento dissented.16 Due to the fact that the required
majority vote necessary to reverse the resolution of the
Second Division was not reached, the COMELEC en banc
conducted a re-hearing on November 22, 2007 pursuant to
Section 6, Rule 18 of the Comelec Rules of Procedure.17 At
the re-hearing, Suhuri presented 20 witnesses, who
affirmed and identified their respective affidavits. For his
part, Hayudini waived the cross-examination. Thereafter,
the parties were required to submit their memoranda, and
the appeal was then deemed submitted for resolution.18
On January 29, 2008, the COMELEC en banc
promulgated its assailed resolution,19 disposing:

“WHEREFORE, premises all considered the Commission (En

Banc) resolved as it hereby resolves to GRANT the Motion for
Reconsideration. The Resolution of the Second Division is hereby
REVERSED and SET ASIDE. Consequently, the proclamation of
Kabir Hayudini is hereby declared VALID.”

Issues

In his petition, Suhuri insists that:

I. THE RESPONDENT HONORABLE COMMISSION ON

ELECTIONS (EN BANC) COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION

_______________

15 Id., at pp. 272-294.

16 Id., at p. 34.
17 Id., at pp. 405-406.
18 Id., at p. 35.
19 Supra, at note 1.

641

WHEN IT HELD TO REVERSE AND SET ASIDE THE 24 JULY

2007 RESOLUTION OF THE HONORABLE COMMISSSION’S
SECOND DIVISION BASED ON THE REPORT OF
RESPONDENT MUNICIPAL BOARD OF CANVASSERS
BELATEDLY FILED AFTER RESPONDENT HAYUDINI’S
MOTION FOR RECONSIDERATION, FOR THE SECOND TIME,
HAS ALREADY BEEN SUBMITTED FOR DECISION; AND
II. THE RESPONDENT HONORABLE COMMISSION ON
ELECTIONS (EN BANC) COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT HELD THAT THE ISSUE
PROFERRED BY PETITIONER DOES NOT INVOLVE A PRE-
PROCLAMATION CONTROVERSY.
 Ruling of the Court

We uphold the assailed resolution of the COMELEC en

banc.

  Suhuri’s Grounds Were Not Proper        

for a Pre-Proclamation Controversy
Were Suhuri’s grounds for nullifying Hayudini’s
proclamation as the duly elected Mayor proper for a pre-
proclamation controversy?
A pre-proclamation controversy, according to Section 1,
Article XX of the Omnibus Election Code, refers to:

“x x x 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 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.”

Not every question bearing on or arising from the

elections may constitute a ground for a pre-proclamation
controversy. Section 243 of the Omnibus Election Code
enumerates the scope of a pre-proclamation controversy, as
follows:
642

“Sec. 243. Issue that may be raised in pre-proclamation

controversy.—The following shall be proper issues that may be
raised in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of
canvassers;
(b) The canvassed election returns are incomplete, contain
material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other authentic
copies thereof as mentioned in Sections 233, 234, 235, and 236 of
this Code;
(c) The election returns were prepared under duress, threats,
coercion, or intimidation, or they are obviously manufactured or
not authentic; and
(d) When substitute or fraudulent returns in controverted
polling places were canvassed, the results of which materially
affected the standing of the aggrieved candidate or candidates.”

Clearly, Section 243, supra, limits a pre-proclamation

controversy to the questions enumerated therein. The
enumeration is restrictive and exclusive.20 Resultantly, the
petition for a pre-proclamation controversy must fail in the
absence of any clear showing or proof that the election
returns canvassed are incomplete or contain material
defects (Section 234, Omnibus Election Code); or appear to
have been tampered with, falsified or prepared under
duress (Section 235, Omnibus Election Code); or contain
discrepancies in the votes credited to any candidate, the
difference of which affects the result of the election (Section
236, Omnibus Election Code).21
To be noted, too, is that in a pre-proclamation
controversy, the COMELEC is restricted to an examination
of the election returns and is without jurisdiction to go
beyond or behind the election returns and to investigate
election irregularities.22 For as long as the election returns
appear to be authentic and duly accomplished

_______________

20 Matalam v. Commission on Elections, G.R. No. 123230, April 18,

1997, 271 SCRA 733; Sanchez v. Commission on Elections, G.R. No. L-
78461, August 12, 1987, 153 SCRA 67.
21 Sanchez v. Commission on Elections, supra, at p. 68.
22 Matalam v. Commission on Elections, supra, at p. 734.

643

on their faces, the Board of Canvassers cannot look beyond

or behind the election returns in order to verify allegations
of irregularities in the casting or counting of votes.23
Suhuri submits that the 25 challenged election returns
were defective for being manufactured, tampered with or
falsified, and for statistical improbability.He lists the
following irregularities to buttress his submission,
namely:24

i. The election returns for Precinct Nos. 9A/10A and 99A/100A have
no signatures and thumbmarks of poll watchers. More
importantly, the respective poll clerks in the two precincts did not
affix their signatures in the election returns.
ii. For Precinct Nos. 11A/12A, 17A/18A, 89A/90A, 91A/92A, 93A/94A
and 95A/96A (6 of the 25 contested election returns), petitioner got
zero (0)- a statistically improbable result.
iii. For Precinct Nos. 15A/16A, there appears to be two poll watchers
who affixed their signatures are the same and appear to have been
made by the same and one person;
iv. For Precinct Nos. 13A/14A, of the 210 total registered voters,
respondent Hayudini garnered a perfect 210 and petitioner got one
 (1) – a statistically improbable result;
v. For Precinct Nos. 21/A/22A, the names of the members of the
Board of Election Inspectors (BEI) and the poll watchers appear to
have been made by only one person;
vi. For Precinct Nos. 49A/50, the printed names of the poll watchers
of the petitioner are printed thereon without their signature,
consistent with their Affidavit that they were intimidated into
leaving the polling place as early as when they had just presented
their appointment papers to the members of the BEI;
vii. For Precinct Nos. 11A/12A, there is only one poll watcher who
affixed his signature;

_______________

23 Loong v. Commission on Elections, G.R. Nos. 107814-107815, May

16, 1996, 257 SCRA 1, 2-3.
24 Rollo, Vol. II, pp. 605-606.

644

viii. For Precinct Nos. 51A/52A, there is the lack of signature of the
third member of the BEI;
ix. For Precinct Nos. 89A/90A, the entries for the precinct no.,
barangay, city/municipality and province are completely blank
while names, signatures and thumb marks of the BEI are
complete; and
x. For Precinct Nos. 93A/94A, there is only one poll watcher who
affixed his name and signature and with no thumb mark;25

Suhuri further submits that threat, violence, duress and

intimidation attended the preparation of the questioned
election returns. As proof, his petition-appeal has included
the following affidavits,26 to wit:

1. The affidavit of Benhar S. Mohammad, attesting that the

supporters of Hayudini and his party-mate, gubernatorial
candidate Abdulsakur Tan, prevented him from entering the
polling place where he was supposed to vote;
2. The joint-affidavit of Angka J. Saradil, Nurhia J. Sidin and
Muranda A. Tilah and Injang A. Ajidin, attesting that they were
not allowed to vote after being identified as supporters of Suhuri;
and that they saw other voters being also prevented from voting;
3. The affidavit of Munning Mandun, a duly appointed watcher,
attesting that the persons who cast their votes were not those
appearing in the voter’s list; and that the bona fide voters listed
therein were prevented from casting their votes;
4. The joint-affidavit of Sherilyn Sawadjaan, Nurmina Usman, Najir
S. Bakil, Merhami S. Bakil, Mubin G. Bakil, Nur-Asiya J. Jumdail
and Gabir S. Jumdail, duly appointed poll watchers, attesting that
 they were not allowed to enter their assigned precincts by known
supporters of Hayudini;
5. The joint affidavit of Bennajar Jul, Nelson Jul, Rubin Ambutong
and Wahab N. Sanuddin, attesting, among others, that they saw
Maligay Barangay Chair Pula Juhul enter the pre-

_______________

25 Underlines are provided for emphasis only.

26 Rollo, Vol. I, pp. 205-218.

645

cinct with an identified group of persons; that when affiant

Bennajar Jul confronted Juhul regarding his unlawful presence in
the precinct, Juhul boxed him, causing his nose to bleed; that the
ballots that they had filled as registered voters were not dropped
into the ballot box; and that they were told to go home by a
member of the Board of Election Inspectors (BEI) of the precinct
because the voting had supposedly ended as early as 1:30 pm;
6. The joint-affidavit of Jarah A. Jumdail, Kahil T. Barrahani,
Almezer H. Rashid, Elias O. Villamor, Anna A. Barrahani and
Najar T. Jihili, attesting that Hayudini’s younger brother Mindal
threatened them not to go into their precincts to vote; and that
they saw the companions of Mindal accomplish the ballots in said
precincts in place of the bona fide registered voters therein;
7. The joint affidavit of Munib A. Sabiran, Aldibar Sabiran,
Nuramin J. Usman, Sarkiya Usman, and Abdulhan Bakil, duly
assigned poll watchers, attesting that they were not allowed to
enter their assigned precincts by known supporters of Hayudini;
8. The joint affidavit of Muharram Jul, Kagayan Sanuddin, Amil
Elias, Sehon Eli, Weldizon Awwalon, Tayte Sanuddin, Juljamin
Sannudin, Hali Sannudin, Pathar Juli and Abduranil Sanuddin,
attesting to the illegal intervention of Maligay Chair Juhul in the
casting of votes by threatening them with bodily harm, resulting
in their not being able to vote;
9. The affidavit of Ermalyn J. Jamasali, a member of the BEI on
duty in Precinct 17A/18A, attesting that BEI Chair Rolina
Abubakar gave the unused ballots under duress to unidentified
men who proceeded to fill them up and handed them to affiant
Jamasali to drop in the ballot box; and
10. The affidavit of Police Inspector Francisco K. Panisan, Chief of
Police of Patikul, attesting that he received several complaints to
the effect that a number of registered voters in the precincts
clustered within the Anuling Elementary School were not allowed
to vote; and that some voters were physically prevented from
getting into their respective precincts.

646
     In fine, Suhuri’s submissions and supporting affidavits
show that the election returns for Precinct Nos. 51A/52A
lacked one of the necessary BEI signatures; that six of the
contested election returns lacked some or all of the
signatures and/or thumbmarks of the poll watchers; that
another six election returns might indicate a statistical
improbability of results; and that only one election return
had no entries in the spaces for the precinct number,
barangay, city/municipality and province.27
Unfortunately for the petitioner, the cited irregularities
and omissions could not be the bases for granting his
petition for the exclusion of the 25 election returns in a pre-
proclamation controversy.
Firstly, the defects cited by Suhuri were mere
irregularities or formal defects that did not warrant the
exclusion of the affected election returns. Indeed, the mere
attendance or presence of the formal defects did not
establish the commission of palpable irregularities in the
election returns. As held in Baterina v. Commission on
Elections,28 the grounds for the exclusion of election
returns from the canvassing as raised by the petitioners’
therein—referring to, among others, the failure to close the
entries with the signatures of the election inspectors, and
the lack of signatures of the petitioners’ watchers, both
involving a violation of the rules governing the preparation
and delivery of election returns for canvassing—did not
necessarily affect the authenticity and genuineness of the
subject election returns as to warrant their exclusion from
the canvassing, being but defects in form insufficient to
support the conclusion that these had been tampered with
or spurious.29
In this regard, the Court has said that the conclusion
that election returns were obviously manufactured or false
and should consequently be disregarded from the canvass
must be approached with extreme caution and made only
upon the most convincing

_______________

27 Id., at pp. 351-353.

28 Baterina v. Commission on Elections, G.R. Nos. 95347-49, January
6, 1992, 205 SCRA 1, 3.
29 Id., at p. 10.

647

proof;30 and that only when the election returns were

palpably irregular might they be rejected.31
 Secondly, the MBC corrected the defects before the
canvass of the election returns upon finding the cause of
the defects to be satisfactorily explained by the members of
the Board of Election Tellers. The MBC’s report bears this
out, to wit:32

“3. Minutes of the canvass x x x will show that there were

only very few election returns that were not signed by some
members of the Board of Election Tellers. The Board decided to
defer the canvass on those returns and issued written directives
to each of the concerned Board of Election Teller to appear before
the Board of Canvassers for explanation for such omission. True
enough, the summoned members of the Board of Election Tellers
who failed to affix their signatures in the return appeared and
gave the explanation in open session that they failed to affix their
signature not because there was fraud, violence or other
irregularities in the preparation thereof, but such omission was
caused solely and unwittingly by the fact that they were heavily
sleepy, tired, hungry and miserably exhausted in the waiting for
the delivery of the election returns. Prior to this, they have been
in the different polling centers spread throughout the
municipality of Patikul early morning on election day for the
preparation of the voting and the voting proper.
4. Some testified that the counting of ballots and the
preparation of election returns in their respective precinct was
merely lighted by candles outside the school classrooms since the
school classrooms were not enough to accommodate all the
precincts for the purpose of counting and preparation of election
returns. This had unwittingly contributed to the faultless and
innocent omission to affix the signature.
5. In the presence of lawyers from different political parties
and candidates, official watchers and before the Board of
Canvassers, the members of the Board of Election Tellers affixed
their signature on the previously incomplete election returns.

_______________

30 Estrada v. Navarro, G.R. No. L-28340, December 29, 1967, 21 SCRA 1514.
31 Mutuc v. Commission on Elections, G.R. No. L-28517, February 21, 1968, 22
SCRA 662, 667.
32 Rollo, Vol. I, pp. 408-409.

648

6. After such completion and towards the end of the canvass,

not a single election return appeared to be materially defective x
x x.”33
 The COMELEC en banc expectedly approved of the
MBC’s actions, absent any other plausible explanation for
the defects supported by substantial evidence. In the
assailed resolution, the COMELEC en banc aptly stated,
viz.:34

“We meticulously re-examined the questioned election returns

and they all appear to be regular and authentic. No showing of
alterations and erasures could be seen on their faces. The re-
examination would also show that twenty three (23) of the returns
were completely signed and thumbmarked by all the members of
the Board of Election Inspectors. Some were signed by at least
two (2) watchers. In Precinct Nos. 47A/48A and 91A/92A, all the
watchers signed the returns. Only two (2) returns, Precinct Nos.
9A/10A and 99A/100A did not contain the signatures of poll
watchers, but were signed and thumbmarked by the Chairmen
and Third Members. Even then, this is not a formal defect which
would constitute a proper ground for exclusion. This means that
the asseverations of the petitioner-appellant has no leg to lean
on.”35

We agree with the COMELEC en banc. The actions of

the MBC were reasonable and warranted. Judicial notice is
properly taken of the fact that the conduct of elections in
many parts of this country, particularly in areas like
Patikul, Sulu, often come under circumstances less than
ideal and convenient for the officials administering the
elections; and of the fact that the process of elections
usually involves sleepless nights, tiresome work, and
constant dangers to the lives and personal safeties of the
many officials who work to see to it that the elections are
orderly and peaceful and their results are obtained
smoothly and with the least delay. We can easily conclude
that such trying circumstances often lead to unintended
omissions in form similar to those Suhuri pointed out.

_______________

33 Underlines are provided for emphasis only.

34 Supra, at note 1, pp. 38-39.
35 Underlines are provided for emphasis only.

649

Thirdly, the allegation of a statistical improbability

reflected in the election returns for Precinct Nos. 11A/12A,
17A/18A, 89A/90A, 91A/92A, 93A/94A and 95A/96A
(wherein Suhuri obtained zero) and for Precinct Nos.
13A/14A (wherein Hayudini garnered 210 out of the 211
total registered voters, with Suhuri being credited with one
vote) lacks substance and merit.
The doctrine of statistical improbability was first
pronounced in Lagumbay v. Commission on Elections,36 in
which the Court upheld the power and duty of the
COMELEC to reject the returns of about 50 precincts
affecting the elections of Senators, because their results
were “contrary to all statistical probabilities,” thus:

“It appearing therein that—contrary to all statistical

probabilities—in the first set, in each precinct the number of
registered voters equalled the number of ballots and the number
of votes reportedly cast and tallied for each and every candidate of
the Liberal Party, the party in power; whereas, all the candidates
of the Nacionalista Party got exactly zero; and in the second set,—
again contrary to all statistical probabilities—all the reported
votes were for candidates of the Liberal Party, all of whom were
credited with exactly the same number of votes in each precinct,
ranging from 240 in one precinct to 650 in another precinct;
whereas, all the candidates of the Nacionalista Party were given
exactly zero in all said precincts.”

Lagumbay expounded on the doctrine of statistical

improbability and the doctrine’s effect on the power of the
COMELEC to reject the results reflected in the election
returns when such returns showed prima facie that they
did not reflect the true and valid reports of regular voting,
thus:37

“We opined that the election result in said precincts as

reported was utterly improbable and clearly incredible. For it is
not likely, in the ordinary course of things, that all the electors of
one precinct would, as one man, vote for all the eight candidates
of the Liberal Party, without giving a single vote to one of the
eight candidates of the Nacionalista Party. Such extraordinary
coincidence was quite impossible to believe, knowing that

_______________

36 G.R. No. L-25444, January 31, 1966, 16 SCRA 175.

37 Id.

650

the Nacionalista Party had and has a nationwide organization,

with branches in every province, and was, in previous years, the
party in power in these islands.
e also know from our experience in examining ballots in the
three Electoral Tribunals (Presidential, Senate, and House) that a
large portion of the electors do not fill all the blanks for senators
in their ballots. Indeed, this observation is confirmed by the big
differences in the votes received by the eight winning senators in
this as well as in previous national elections; 2 almost a million
votes between the first place and the eight. Furthermore, in 1965,
the total number of electors who cast their votes was 6,833,369
(more or less). If every voter had written eight names on his
ballot, the total number of votes cast for all the candidates would
be that number multiplied by 8, namely 54,666,952. But the total
number of votes tallied for the candidates for senator amounted to
49,374,942 only. The difference between the two sums represents
the number of ballots that did not contain eight names for
senators. In other words, some 5 million ballots did not carry
eight names. Of course, this is a rough estimate, because some
ballots may have omitted more names, in which case, the number
of incomplete ballots would be less. But the general idea and the
statistical premise is there.
The same statistical result is deducible from the 1963 election
data: total number of electors who voted, 7,712,019; if each of
them named eight senators, the total votes tallied should have
been 61,696,152, and yet the total number tallied for all the
senatorial candidates was 45,812,470 only. A greater number of
incomplete ballots.
It must be noted that this is not an instance wherein one
return gives to one candidate all the votes in the precinct, even as
it gives exactly zero to the other. This is not a case where some
senatorial candidates obtain zero exactly, while some others
receive a few scattered votes. Here, all the eight candidates of one
party garnered all the votes, each of them receiving exactly the
same number; whereas all the eight candidates of the other party
got precisely nothing.
The main point to remember is that there is no blockvoting
nowadays.
What happened to the vote of the Nacionalista inspector?
There was one in every precinct. Evidently, either he became a
traitor to his party, or was made to sign a false return by force or
other illegal means. If he signed voluntarily, but in breach of
faith, the Nacionalista inspector betrayed his party; and, any
voting or counting of ballots therein, was a sham and a mockery of
the national suffrage.

651

Hence, denying prima facie recognition to such returns on the

ground that they are manifestly fabricated or falsified, would
constitute a practical approach to the Commission’s mission to
insure free and honest elections.
In Mitchell vs. Stevens, supra, the returns showed a noticeable
excess of votes over the number of registered voters, and the court
rejected the returns as obviously “manufactured.” Why? The
excess could have been due to the fact that, disregarding all
pertinent data, the election officers wrote the number of votes
their fancy dictated; and so the return was literally a
“manufactured,” “fabricated” return. Or maybe because persons
other than voters, were permitted to take part and vote; or
because registered voters cast more than one ballot each, or
because those in charge of the tally sheet falsified their counts.
Hence, as the Mitchell decision concluded, the returns were “not
true returns . . . but simply manufactured evidences of an attempt
to defeat the popular will.” All these possibilities and/or
probabilities were plain fraudulent practices, resulting in
misrepresentation of the election outcome. “Manufactured” was
the word used. “Fabricated” or “false” could as well have been
employed.
The same ratio decidendi applies to the situation in the
precincts herein mentioned. These returns were obviously false or
fabricated—prima facie. Let us take for example, precinct No. 3 of
Andong, Lanao del Sur. There were 648 registered voters.
According to such return all the eight candidates of the Liberal
Party got 648 each, and the eight Nacionalista candidates got
exactly zero. We hold such return to be evidently fraudulent or
false because of the inherent improbability of such a result—
against statistical probabilities—specially because at least one
vote should have been received by the Nacionalista candidates,
i.e., the vote of the Nacionalista inspector. It is, of course,
“possible” that such inspector did not like his party’s senatorial
line-up; but it is not probable that he disliked all of such
candidates, and it is not likely that he favored all the eight
candidates of the Liberal Party. Therefore, most probably, he was
made to sign an obviously false return, or else he betrayed his
party, in which case, the election therein—if any—was no more
than a barefaced fraud and a brazen contempt of the popular
polls.
Of course we agree that frauds in the holding of the election
should be handled—and finally settled—by the corresponding
courts or electoral tribunals. That is the general rule, where
testimonial or documentary evidence, is necessary; but where the
fraud is so palpable from the return itself (res ipsa loquitur—the
thing speaks for itself), there is no reason to accept it and give it
prima facie value.

652

At any rate, fraud or no fraud, the verdict in these fifty

precincts may ultimately be ascertained before the Senate
Electoral Tribunal. All we hold now is that the returns show
“prima facie” that they do not reflect true and valid reports of
regular voting. The contrary may be shown by candidate Climaco
—in the corresponding election protest.”
 Under Lagumbay, therefore, the doctrine of statistical
improbability is applied only where the unique uniformity
of tally of all the votes cast in favor of all the candidates
belonging to one party and the systematic blanking of all
the candidates of all the opposing parties appear in the
election return.38 The doctrine has no application where
there is neither uniformity of tallies nor systematic
blanking of the candidates of one party.39 Thus, the bare
fact that a candidate for public office received no votes in
one or two precincts, standing alone and without more,
cannot adequately support a finding that the subject
election returns are statistically improbable. Verily, a zero
vote for a particular candidate in the election returns is but
one strand in the web of circumstantial evidence that the
electoral returns were prepared under duress, force and
intimidation.40
The Court has thus warned that the doctrine of
statistical improbability must be restrictively viewed, with
the utmost care being taken lest in penalizing fraudulent
and corrupt practices—which is truly called for—innocent
voters become disenfranchised, a result that hardly
commends itself.41 Such prudential approach makes us
dismiss Suhuri’s urging that some of the electoral results
had been infected with the taint of statistical improbability
as to warrant their exclusion from the canvass in a pre-
proclamation controversy. Specifically, his petition and the
records nowhere show that his party-mates received a
similar number of votes (or

_______________

38 See Sinsuat v. Pendatun, G.R. No. L-31501, June 30, 1970, 33 SCRA
630.
39  Doruelo v. Commission on Elections, G.R. No. L-67746, November
21, 1984, 133 SCRA 376, 377.
40 Velayo v. Commission on Elections, G.R. No. 135613, March 9, 2000,
327 SCRA 713, 743.
41 Id.

653

lack of any) by which to conclude that there were a unique

uniformity of tally and a systematic blanking of other
candidates belonging to one party.
Fourthly, Suhuri contends that threat, violence, duress
and intimidation were attendant in the preparation of
election returns of the 25 contested precincts. He has
presented the affidavits of voters and poll watchers from
the 25 precincts whose election returns he questioned;42 the
affidavit of one Ermalyn J. Jamasali, a member of the BEI
of one of the precincts; and the affidavit of Police Inspector
Panisan, Chief of Police of Patikul, Sulu.43
Yet, the affidavits, because they referred to incidents
that had occurred at the various precincts during the
voting, did not substantiate Suhuri’s allegation of duress,
threats, coercion, and intimidation during the preparation
or making of the election returns. The COMELEC en banc
rightly noted and pointed this out in its assailed resolution,
to wit:
“x x x the various affidavits presented by the petitioner
do not even relate to the fact of the election returns being
manufactured or prepared under duress, but to the alleged
irregularities in the voting which are proper grounds in an
election protest.”44
Fifthly, BEI member Jamasali narrated in her affidavit
her having personally witnessed fraud committed during
the elections. Even assuming that the fraud she thereby
exposed constituted an irregularity in the conduct of the
elections, the incident, being isolated, did not warrant the
exclusion of all the 25 election returns, but only of the
return for the precinct where the fraud had occurred.
However, the exclusion of the election returns from that
precinct (i.e., Precinct 17A/18A), if called for, would not
alter the overall result for the mayoralty contest in Patikul,
Sulu,45 considering that said precinct had only 189
registered voters. We note that Hayudini had a winning
margin of 775 votes over Suhuri.

_______________

42 Rollo, Vol. I, pp. 205-218.

43 Id., at pp. 27-29.
44 Supra, at note 1, p. 40.
45 Rollo, Vol. I, p. 196.

654

Lastly, Police Inspector Panisan’s election report,46

albeit official, would not justify the exclusion of the returns
from the precincts clustered in the Anuling Elementary
School. Concededly, Panisan’s report, being hearsay
because he had not himself actually witnessed the
incidents described in the report, was unreliable and had
no value for purposes of Suhuri’s petition-appeal. It would
not be trite to emphasize that the results of an election
should not be annulled based on hearsay evidence.
 II

COMELEC En Banc
Did Not Gravely Abuse Its Discretion
In a special civil action for certiorari, the petitioner
carries the burden of proving not merely reversible error,
but grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the public respondent for its
issuance of the impugned order.47 Grave abuse of discretion
is present “when there is a capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction,
such as where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility,
and it must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform
the duty enjoined or to act at all in contemplation of law.”48
In other words, the tribunal or administrative body must
have issued the assailed decision, order or resolution in a
capricious or despotic manner.49
Suhuri did not discharge his burden as petitioner, to
satisfactorily show that his grounds were proper for a pre-
proclamation controversy. We cannot go to his succor, for
the COMELEC cannot

_______________

46 Id., at p. 219.
47 Suliguin v. Commission on Elections, G.R. No. 166046, March 23,
2006, 485 SCRA 219, 233.
48 Reyes-Tabujara v. Court of Appeals, G.R. No. 172813, July 20, 2006,
495 SCRA 844, 857-858.
49 Malinias v. Commission on Elections, 439 Phil 319, 330; 390 SCRA
480, 486 (2002).

655

not look behind or beyond the 25 contested election returns

in a pre-proclamation controversy. Moreover, contrary to
his urging, the COMELEC en banc did not rely mainly on
the report submitted by the MBC on December 4, 2007 in
order to find against him. It is clear that the COMELEC en
banc took note of the matters and circumstances that
Suhuri himself had submitted to its consideration when it
rendered its assailed resolution. If it did not accept his
submissions, it did not abuse its discretion, because it
based its assailed resolution on the established facts, the
law, and the pertinent jurisprudence.
 Before closing, we stress that the powers of the
COMELEC are essentially executive and administrative in
nature. This is the reason why the question of whether or
not there were terrorism, vote-buying and other
irregularities in the elections should be ventilated in
regular election protests. The COMELEC is not the proper
forum for deciding such protests.50 Accordingly, a party
seeking to raise issues, the resolution of which compels or
necessitates the COMELEC’s piercing the veil of election
returns that appear prima facie to be regular on their face,
has his proper remedy in a regular election contest.51
WHEREFORE, we affirm the resolution dated January
29, 2008 issued in S.P.C. No. 07-118 by the Commission on
Elections en banc, reversing the resolution dated July 24,
2007 of its Second Division; and confirm the proclamation
of respondent Kabir E. Hayudini as the duly elected Mayor
of the Municipality of Patikul, Province of Sulu in the local
elections of May 14, 2007.
The petitioner shall pay the costs of suit.
SO ORDERED.

Puno (C.J.), Ynares-Santiago, Carpio, Corona, Carpio-

Morales, Velasco, Jr., Nachura, Leonardo-De Castro,
Peralta, Del Castillo and Abad, JJ., concur.

_______________

50 Abes v. Commission on Elections, G.R. No. L-28348, December 15,

1967, 21 SCRA 1252, 1258.
51 Matalam v. Commission on Elections, supra, at note 20, p. 734.

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