By Angeline Valencia
Recount victor, Narciso Avelino, recently assumed office as barangay captain of Poblacion Ibabao in the municipality of Loay after the about 10-month course of election case that booted out Ricardo Duco, the declared winner in the October 2007 elections.
Avelino took his oath before Mayor Rosemarie Lim-Imboy on September 5.
This was after the Municipal Circuit Trial Court (MCTC) Branch 13 in Loay, covering the Loay-Alburquerque-Baclayon jurisdiction, issued a writ of execution dated September 4, 2008, through Clerk of Court Gertrudes Romero.
This was based on the order of MCTC Branch 13 Presiding Judge Alejandro Canda, bearing the same date, that directed the issuance of the writ of execution for the implementation of the court decision.
Canda explained in his brief order that the decision of MCTC Branch 13 "has attained finality upon the 'order of dismissal of the appeal with finality' dated August 21, 2008" that the Commission on Elections had issued, and the entry of judgment also dated August 21, 2008.
Avelino, through his counsel, Lawyer Aleck Francis Lim, submitted a manifestation/compliance on September 2 before the MCTC Branch 13 showing that he received on that day, copies of the entry of judgment dated August 21, 2008 and the order from the first division of the Commission on Elections also dated August 21, 2008 denying Duco's urgent manifestation/motion to defer implementation of the order dated July 23, 2008 "for lack of merit". It was to manifest that the Comelec had already dismissed Duco's appeal with finality and that it's already in the Book of Entries of Judgment.
The entry of judgment, that Director Betty Pizaña of the Electoral Contests Adjudication Department (ECAD) issued, certified that the first division of the Comelec issued an order on April 30, dismissing Duco's instant appeal for failure to file his notice of appeal and failure to pay the appeal fee as prescribed under the Comelec Rules of Procedure within five-day reglementary period; that an order dated May 22, 2008 denied Duco's verified motion for reconsideration for failure to pay the required motion fees; and that the order dated July 23, 2008 called for the issuance of the entry of judgment in the instant case and directed the Judicial Records Division-ECAD of Comelec First Division to remand within three days, the entire records of the case to MCTC Branch 13 for proper disposition.
Earlier, MCTC Branch 13 issued a decision in January this year finding Avelino as the duly elected barangay captain of Poblacion Ibabao with a total of 325 votes against Duco, who only got a total of 321 votes, based on the recounting done.
This restrained Duco from assuming as barangay captain of Poblacion Ibabao.
In January this year, Duco filed an appeal before the Commission on Elections (Comelec) for the reversal of the decision of MCTC Branch 13 that dismissed him after finding irregularity in the counting of votes during the October 2007 polls.
The court found Avelino actually leading by four votes based on recounting.
In a seven-page decision, MCTC Branch 13 Acting Judge Jennifer Chavez-Marcos cited that of the 326 votes counted in favor of Duco, five were stray votes. This leaves Duco with only 321 votes, actually.
On the other hand, Chavez-Marcos considered the four ballots bearing only the official nickname of Avelino, as valid. This added four votes to Avelino, making it 325 instead of just 321 as previously counted.
The case stemmed from Avelino's instant election case filed on November 8, last year against Duco after four ballots bearing his nickname, Sisoy, were considered invalid during the canvassing in four precincts.
Avelino then sought for the dismissal of Duco, alleging fraud in the synchronized barangay and Sangguniang Kabataan (SK) elections on October 29, last year.
Duco denied Avelino's allegations of irregularity in the counting of the ballots for the barangay captain.
But Avelino called for a recounting of ballots from Precincts 0004A-0004B, 0005A-0005B, 0006A and 0007A-0007B.
During the pre-trial conference on November 3, last year, it was disputed that Avelino got 321 votes in the four precincts, while Duco got 326 and that Avelino's watcher failed to raise objection on the Neighborhood Rule applied on the seven votes intended for him and the declaration of the three ballots bearing his nickname as invalid.
The Board of Election Tellers declared seven votes from Precincts 0005A-0005B, 0006A and 0007A-0007B as invalid since Avelino's name was written on the space other than the designated one for barangay captain in the ballot.
The Board of Election Tellers also declared three votes from the three precincts invalid since only the word, Sisoy (Avelino's official nickname) was written on the space intended for choice of barangay captain in three ballots.
Revision was conducted from November 29 to December 3, last year from which the chairman of the Revision Committee, Gertrudes Romero, came up with a report dated December 7, 2007.
Based on the report, the court cited the Rules for the Appreciation of Ballots in section 211 of Article XVII (Counting of Votes) in the Omnibus Election Code which explains that "…the object of the election is to obtain the expression of the voter's will", and that "every ballot shall be presumed valid unless there is clear and good reason to justify its rejection". For the ballot in precinct 0007A-0007B that contained the name S AELINO on the space for barangay captain, the court considered that "it is very close in spelling and similarly sounding" to "Avelino".
The court cited the rule of "sounding the same or nearly alike" which explains that "if the name as spelled in the ballot, although different from its orthographically correct spelling, sounds practically the same when pronounced according to our method of pronunciation, it is sufficient designation of the individual to whom it refers, and the error of the writer must not be taken into account.
The court also explained that "the misspelling of a name or lack of skill in writing it, should not be taken as a ground for rejecting the votes apparently intended for a candidate, so long as the intention of the voter appears to be clear". Rule 7 of section 211 of the Omnibus Election Code also states that "a name or surname incorrectly written, which when read, has a sound similar to the name or surname of a candidate when correctly written shall be counted in his favor," the court cited.
The votes for Avelino that the Board of Election Tellers rejected included those contained in three ballots, two from Precinct 0006A, one from Precinct 0005A-0005B, and one from Precinct 0004A-0004B which all contained the name "Sisoy" on the first line for the position of barangay councilor.
Citing the neighborhood rule, the court opined "that a vote for a candidate for a position written near the line or space for such position which is left vacant is a valid vote for such candidate".
On the other hand, Avelino also protested four ballots for Duco, of which three were from Precincts 0006A, 0005A and 0005B which contained words that were unreadable and one from Precinct 0007A-0007B with a name that was neither the real name, nor nickname, nor surname of Duco.
The court considered them stray votes as far as the position of barangay captain is concerned, since the names on the space for barangay captain in the four ballots were totally unreadable and could not stand for a particular candidate.