Lindo v. COMELEC

Lindo v. COMELEC

G.R. No. 127311 June 19, 1997

Puno, J.

Facts:

                In the May 8, 1995 elections, petitioner CONRADO LINDO and private respondent ROSARIO VELASCO (incumbent mayor of Ternate, Cavite) were the main rivals for the position of Ternate mayor. On May 9, 1995, petitioner was declared by the board of canvassers as the duly elected mayor, garnering the highest number of votes at 2,711. Private respondent was second with 2,195 votes.

                On May 19, 1996, private respondent, while still discharging her functions as Ternate mayor, filed an election protest contesting the results of the election in all the 19 precincts.

In June, 1995, prior to petitioner’s assumption of the office of Ternate mayor, the ballot boxes of all the protested precincts were transferred from the office of the municipal treasurer to the office of the clerk of court, RTC Naic, for revision of the ballots. Only the ballots from 24 precincts were revised because private respondent abandoned her protest with respect to the other 15 precincts.

The revision showed a substantial variance between the number of votes as stated in the election returns and the number of votes as per physical count of the ballots in five (5) precincts. In view of the above findings, Assisting Judge Emerito M. Agcaoili declared private respondent as the duly elected mayor of Ternate, Cavite. Petitioner was ordered to vacate the office of the Ternate mayor and turn it over to private respondent.

At the hearing on the motion for execution, petitioner claimed that Judge Agcaoili only examined the photocopies of the ballots in deciding the case. Thereafter, respondent Judge Napoleon Dilag took over the protest case and issued an Order granting the motion for execution pending appeal upon private respondent’s filing of a P100,000.00 cash bond. On the same date, Judge Dilag issued the writ of execution directing the PNP Director of Cavite to implement the writ and install private respondent as mayor of Ternate, Cavite.

Petitioner claims that the COMELEC issued the preliminary injunction after finding that the trial court did not examine the original ballots, but relied only on the xerox copies in deciding the protest. Although subsequently COMELEC lifted the injunction, it still made a finding that fake and spurious ballots may have been introduced in the ballot boxes to increase the votes of private respondent. Thus, petitioner contends that the COMELEC should not have allowed the execution of the decision pending appeal and should have opened the ballots boxes to determine the authenticity of the ballots therein.

Issue:

                whether or not COMELEC erred in allowing the implementation of the writ of execution of the decision pending appeal

Held:

                Rule 143 of the Rules of Court allows execution pending appeal in election cases upon good reasons stated in the special order. In its Order of execution, respondent RTC Judge Dilag cited two reasons to justify execution of his decision pending appeal, viz: (1) the grant of execution would give substance and meaning to the people’s mandate, especially since the RTC has established private respondent’s right to office, and; (2) barely 18 months is left on the tenure of the Ternate mayor and the people have the right to be governed by their chosen official. In the recent case of Gutierrez v. COMELEC, the same grounds for execution pending appeal of the decision in the protest case were relied upon by the trial court and we found them to be valid reasons for execution.

                COMELEC did not err in applying Section 2, Rule 39 of the Rules of Court, which provides:

Sec. 2. Execution pending appeal. — On motion of the prevailing party with notice to the adverse party, the court may, in its discretion, order execution to issue before the expiration of the time to appeal, upon good reasons to be stated in a special order. If a record on appeal is filed thereafter, the motion and special order shall be included therein.

Section 2, Rule 39 of the Rules of Court applies suppletorily to election cases. As long as the motion for execution pending appeal is filed before the perfection of appeal, the writ of execution may issue after the period of appeal.