Election Returns Exclusion Based on Missing Pages and Evident Irregularities

In every election, the canvassing of votes depends on election returns that are complete and regular on their face. When a return is missing a page — and votes for several candidates cannot be found anywhere — the integrity of the count is placed in doubt. Basarte v. Commission on Elections (G.R. No. 169413, May 9, 2007) tackles this exact problem: how far can a board of canvassers, or the Commission on Elections (COMELEC), go in excluding a defective return from the canvass?

The Case in Brief

Gabriel Garduce Basarte and Noel Jarito vied for municipal mayor of Silvino Lobos, Northern Samar in the May 10, 2004 elections. During the canvass, Basarte objected to the inclusion of Election Return No. 04101444 from Precinct No. 17A, Barangay Cagda-o. He alleged that the return was tampered with and that its second page — which should have contained votes for local positions — was missing.

The Municipal Board of Canvassers (MBC) denied the objection, relying on the testimony of the Board of Election Inspectors (BEI) chairman that no second page ever existed in the copies they received. The COMELEC First Division affirmed, and the COMELEC en banc denied Basarte's motion for reconsideration. Jarito was later proclaimed mayor.

The Procedural Defect in the COMELEC Ruling

Basarte raised a procedural issue that the Supreme Court found meritorious. Under Section 1, Rule 4 of the COMELEC Rules of Procedure, no member may be the ponente of an en banc decision or resolution on a motion for reconsideration of a decision or resolution he himself wrote in a Division. The same Commissioner who penned the First Division resolution also penned the en banc resolution denying reconsideration.

Citing Agbayani v. COMELEC (G.R. Nos. 87440-42, June 13, 1990), the Court held that this violation alone justifies reversal. The COMELEC, of all bodies, must respect and obey its own rules to avoid any suspicion of bias or arbitrariness.

Why the Missing Page Mattered

The Court found that the COMELEC disregarded glaring facts giving rise to a prima facie showing of irregularity. The following were undisputed:

• The election return lacked one page.
• That page should have contained the continuation of the list of candidates for Provincial Board Member and the first thirteen slots for mayoral candidates.
• In the assailed return, the names of the two mayoral candidates and their votes appeared on page 3.
• The names and votes of seven Provincial Board Member candidates were missing entirely.

The only explanation offered was the BEI chairman's statement before the MBC that no page 2 existed. The Court noted, quoting with approval the dissent of Commissioner Mehol K. Sadain, that this explanation appeared nowhere in the official records — no transcript, no minutes. More importantly, the votes for the seven board members remained unaccounted for.

The Court cited Lee v. COMELEC (G.R. No. 157004, July 4, 2003): votes for an important position do not simply vanish into thin air. Those mandated to account for them must give a reasonable explanation. Absent that, doubt arises as to the authenticity of the return.

The Presumption of Regularity Does Not Save a Defective Return

The COMELEC argued that a pre-proclamation controversy is limited to examining returns on their face, and that it cannot look behind them. The Court disagreed. The omission itself appeared on the face of the return. When an irregularity is evident on its face, the presumption of regularity in the preparation of the return vanishes, and the principle that returns are prima facie bona fide no longer applies.

The COMELEC also claimed it examined the COMELEC copy of the return. But what was assailed was the MBC copy actually used in the canvass. Under Section 235 of the Omnibus Election Code, other original copies may be resorted to only when the assailed return appears tampered, altered, or falsified. The COMELEC's approach was inconsistent, and it never compared the two copies.

Why the Petition Still Failed

Despite these findings, the petition was denied. Section 243(d) of the Omnibus Election Code requires that for a pre-proclamation controversy to prosper, the return sought to be annulled must materially affect the election results. The COMELEC resolutions were silent on this, and Basarte never alleged materiality in his petition for exclusion before the MBC. He raised it only belatedly, attaching a Statement of Votes to his Supreme Court petition — a factual matter the Court could not resolve for the first time on appeal.

Practical Takeaways

• A return that is incomplete on its face — such as one missing a page — can overcome the presumption of regularity and justify exclusion from the canvass.
• The COMELEC must follow its own procedural rules, including the rule against the same Commissioner acting as ponente in both the Division and the en banc reconsideration.
• In pre-proclamation cases, the materiality requirement under Section 243(d) of the Omnibus Election Code must be alleged and proven early — not raised for the first time on appeal.
• Other copies of an election return may be examined only when the assailed copy appears tampered, altered, or falsified, and the comparison must be properly documented.
• Voters and candidates should raise objections and preserve evidence at the earliest opportunity before the board of canvassers.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.