Barangay election protest

I wish to share a responsive pleading I have filed with a metropolitan trial court in connection with a pending barangay election protest, where I represent the protestees (incumbent/re-elected chairman and councilmen), for legal research purposes of my readers. Focus on the legal issues raised/discussed in the special affirmative defenses part of the pleading. Thus:


JOINT VERIFIED ANSWER WITH SPECIAL AFFIRMATIVE DEFENSES AND COMPULSORY COUNTERCLAIM WITH EX PARTE MOTION TO SET HEARING ON THE SPECIAL AFFIRMATIVE DEFENSES


THE PROTESTEES respectfully state, by way of a joint verified answer with special affirmative defenses and compulsory counterclaim, and in compliance with the summons, dated November 18, 2010, copies of which were served on them on November 19, 2010, thus:


I. ANSWER

1. Paragraphs 1, 2 and 3 of the complaint are admitted, subject to the following qualifications, to wit:

1.1. Only Barangay Chairman xxx and the following four (4) Kagawads, i.e., xxx were “re-elected” on October 25, 2010.

1.2. Xxx were elected for the “first term” on October 25, 2010.

1.3. Barangay Chairman xxx and the four (4) re-elected Kagawads, i.e., xxx, and the three (3) newly elected Kagawads, i.e., xxx, were duly proclaimed by the Barangay Board of
Canvassers on October 26, 2010, pursuant to existing and applicable elections laws, resolutions and rules and regulations issued by the Commission on Election (Comelec), and jurisprudence.

2. Paragraphs 4 to 10 of the complaint are specifically denied, the truth of the matter being that:

2.1. The barangay election conducted in Barangay xxx, xxx City was honest, orderly, and peaceful..

2.2. The election was properly conducted by the Comelec and its authorized representatives, agents, employees, and personnel, and its parish-based citizens arm PPCRV, in accordance with the Constitution and existing election and local government laws, rules and regulations, and jurisprudence.

2.3. The protestees, as candidates in the election and who are respected political, civic and religious leaders of the community, did not engage in any illegal, immoral, unethical, or unprofessional act or omission before, during or after their election and proclamation.

2.4. The protestees have no personal knowledge of the alleged commission of any election crime, offense, or irregularity by any person before, during and after their election and proclamation.

2.5. To the best of the knowledge of the protestees, no official record, blotter, report, or complaint was filed by any party in the dockets of the Barangay Government, the City Government, the local Comelec office of the city, and/or the local Police Station of the city, proving the commission of any such election crime, offense or irregularity in connection with the election conducted in Barangay xxx (other than the alleged pre-proclamation protest filed by the protestants on October 28, 2010, per Par. 5 of their complaint, with respect to which it appears that no formal proceedings were held before the local Comelec of the city and about which the protestees do not appear to have been formally summoned by the local Comelec to litigate).

2.6. The alleged watcher’s reports and other documents attached to the complaint appear to have been falsified, forged, doctored, manufactured, intercalated, and manipulated as to its contents, as shown by various unauthorized and unexplained insertions and intercalations (in obviously different handwritings vis-à-vis the official signatures appearing below the intercalated/inserted texts) in the “remarks” portions and other pro-forma blank parts thereof.

(Note: The protestees hereby reserve the right to seek a technical/scientific examination thereof in due time in the course of the proceedings of this case. They further reserve the right to cause the criminal prosecution of the guilty parties who might have caused such illegal acts or who might have benefitted therefrom).

2.7. The best evidence to prove the final official results of the said election are the final data and statistics and the official documents and accomplished election forms in the official custody of the Comelec of the city and not the self-serving , dubious, unverified and unauthenticated watchers’ reports and other suspicious, manufactured and manipulated documents annexed to the complaint, i.e., Annex A, Annex B, Annex C, Annex D, and Annex E, all with submarkings.

2.8. The rights of the candidates under existing election laws were duly respected by the Comelec and the Boards of Election Inspectors (BEIs) during the election.

2.9. The candidates had deployed their respective watchers during the election.

2.10. The protestees did not commit any illegal act of corrupting, bribing, buying, or influencing the Comelec and the PPCRV. They are simple, honest, and hardworking middle-income homeowners, whose moral characters and public reputations in the community and in the parish are untarnished and unquestioned.

2.11. The frivolous complaint of the protestants has put in a bad light the good name and honor of the local Comelec of the city as an institution. They have likewise harmed and injured the honor and reputation of the protestants as private individuals and citizens.

2.12. Other than the generic, empty, and bare conclusions (which are not ultimate facts, as required by the rules on pleadings) alleged in the complaint, the protestants have miserably failed to prove the existence of alleged massive fraud, vote buying, cheating, dishonesty, influence, corruption, and other alleged anomalies during the election.

2.13. In fact, the complaints questions only four (4) precincts in their complaint, i.e., “Precinct No. xxx” (Par. 6, Complaint) and “Precinct Nos. xxx and xxx and xxx” (Par. 7, Complaint).

2.14. No supporting affidavits of independent voters registered in the different precincts were presented by the protestants to prove the baseless allegation of massive fraud, vote buying, and other election anomalies.

2.15. The Barangay Board of Canvassers complied with existing election laws when it proclaimed on October 26, 2010 the protestees as duly elected barangay officials. In fact, to the best recollection of the protestees, the canvassing was personally witnessed by the protestants xxx, xxx, and xxx, without interposing any objection as to the constitution and proceedings thereof.

II. SPECIAL AFFIRMATIVE DEFENSES

3. The protestees had no previous knowledge that a “pre-proclamation controversy” proper and correct in form and in substance had ever existed or was ever commenced by the protestants.

4. The protestees were proclaimed on October 26, 2010.

5. As alleged by the protestants, the so-called “pre-proclamation petition” initiated by the protestants before the local Comelec of the city (Annex A, Complaint) was filed therewith only on October 28, 2010, or two (2) days after the consummation of the lawful proclamation of the protestees and three (3) days after their lawful election.

5.1. It was not filed before the date of the proclamation. It was not a pre-proclamation petition in is real sense but a post-proclamation one.

5.2. Having been filed beyond and after the actual proclamation date, the alleged “pre-proclamation petition” of the protestants was not a proper and correct “pre-proclamation petition”, for which reason, it did not toll or suspend and could not have effectively and legally tolled and suspended the running of the 10-day period to file a regular election protest, pursuant to Section 8, Rule I, of the AM No. 07-4-15-SC, May 15, 2007 (Supreme Court En Banc), entitled “RULES OF PROCEDURE IN ELECTION CONTESTS BEFORE THE COURTS INVOLVING ELECTIVE MUNICIPAL AND BARANGAY OFFICIALS”, thus:

SEC. 8. Period to file protest or petition; non-extendible.—The election protest or petition for quo warranto shall be filed within the non-extendible period of ten days following the date of proclamation.

5.3. The record of this case will show that the instant case was filed by the protestants with this Court only on November 12, 2010, or 17 days from the actual date of the proclamation.

5.4. Clearly, the instant case was filed beyond the 10-day reglamentary period imposed and fixed by Sec. 8, Rule I, of A.M. No. 07-4-14-SC.

6. Even if the alleged “pre-proclamation petition” of the protestants would be treated, arguendo, by this Court as a regular election protest, the same was and is still ineffective and invalid, having been filed by them in the wrong and improper venue, i.e., the local Comelec of the city, which had no jurisdiction over regular election protests involving municipal and barangay elections, as clearly stated in AM No. 07-4-15-SC, May 15, 2007 (Supreme Court En Banc), entitled “RULES OF PROCEDURE IN ELECTION CONTESTS BEFORE THE COURTS INVOLVING ELECTIVE MUNICIPAL AND BARANGAY OFFICIALS”.

6.1. It is will be noted that Section 3, Rule I, of A.M. No. 07-4-15-SC defines an “election protest” as “relating to the election and returns of elective officials, grounded on frauds or irregularities in the conduct of the elections, the casting and counting of the ballots and the preparation and canvassing of returns. The issue is who obtained the plurality of valid votes cast.”

6.2. Further, Section 2, Rule 2, of A.M. No. 07-4-15-SC provides that “municipal trial courts shall have exclusive original jurisdiction over all election contests involving elective barangay officials.” Not the local Comelec of the city or town.

7. It will be noted that protestants xxx and xxx did not sign the verification and anti-forum shopping certification of the complaint. Thus, the instant complaint should be dismissed as to them and the caption of this case amended to remove their names therefrom, pursuant to Section 7, Rule 2, of AM No. 07-4-15-SC, which provides that:

7.1. “An election protest or a petition for quo warranto shall be verified by an affidavit stating that the affiant has read the petition and that the allegations therein are true and correct of affiant’s own knowledge or based on authentic records. X x x.”

7.2. “The protestant or petitioner shall sign personally the certificate of non-forum shopping which must be annexed to the election protest or petition for quo warranto.”

7.3. “An unverified petition or one with insufficient verification or unaccompanied by a certificate of non-forum shopping shall be dismissed outright and shall not suspend the running of the reglementary period to file an election protest or petition for quo warranto.”

8. Being composed merely of general conclusions and incomplete statements of fact, it is submitted that the complaint has failed to comply with the required form and substance mandated by Section 11, Rule 2, A.M. No. 07-4-15-SC, which provides that “an election protest or petition for quo warranto shall specifically state the following facts:

(a) the position involved;

(b) the date of proclamation; and

(c) the number of votes credited to the parties per proclamation.

(d) the total number of precincts of the municipality or the barangay
concerned;

(e) the protested precincts and votes of the parties in the protested precincts per the Statement of Votes By Precinct or, if the votes of the parties are not specified, an explanation why the votes are not specified; and

(f) a detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts.”

8.1. The protestants did not make any formal explanation in their complaint why they had failed to comply with the foregoing provision as required by the said Rules.

8.2. Further, Section 13, Rule 2, of AM No. 07-4-15-SC provides that “the court shall summarily dismiss, motu proprio, an election protest, counter-protest or petition for quo warranto on any of the following grounds:

(a) The court has no jurisdiction over the subject matter;

(b) The petition is insufficient in form and content as required in Section 11 hereof;

(c) The petition is filed beyond the period prescribed in these Rules;

(d) The filing fee is not paid within the period for filing the election protest or petition for quo warranto; and

(e) In case of protest where a cash deposit is required, the cash deposit is not paid within five days from the filing of the protest.

III. COMPULSORY COUNTERCLAIM

9. Considering the baseless, frivolous, malicious and harassment nature of the complaint, it has inflicted upon the protestees mental anguish, sleepless nights, public ridicule, and extreme anxiety, which deserve an award of reasonable moral damages in the amount of at least P100,000.00.

10. Considering further that the protestees were constrained to retain a legal counsel to protect and defend their rights against this baseless, frivolous, malicious and harassment case, they deserve an award of attorney fees of at least P50, 000.00, plus costs of suit.

IV. PRAYER


WHEREFORE, premises considered, it is respectfully prayed that:

1. The PRELIMINARY HEARING be set by the Court prior to pre-trial and trial stages to hear and resolve the SPECIAL AFFIRMATIVE DEFENSES raised in this “Joint Verified Answer…”;

2. That, in the event this case is not dismissed on the basis of the special affirmative defenses raised in this Answer, after trial on the merits, the instant case be DISMISSED for utter lack of merit;

3. That judgment be rendered ordering the protestants to pay the protestees the following amounts:

3.1. P100,000.00 by way of moral damages; and
3.2. P20,000 by way of attorney’s fees;
3.3. Plus costs of suit.


FURTHER, the protestees respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.

Las Pinas City, November 23, 2010.


MANUEL J. LASERNA JR. LAW OFFICE
Counsel for the Protestees
67 Chico Drive, Agro Homes I, Moonwalk Village
Talon 5, Las Pinas City 1747
Tel. No. 8062970
Mobile No. 0926 7192859
Email – mjlasernajr@gmail.com
Website – http://attylaserna.blogspot.com



MANUEL J. LASERNA JR.
Roll No. 33640, 4.27/85
IBP Lifetime Member No. 1907
IBP Leyte Chapter
MCLE Compliance III-2280
PTR No. 9957969, 1/4/10, Las Pinas



VERIFICATION
AND
ANTI-FORUM SHOPPING CERTIFICATION


We, the undersigned protestees in the foregoing “Joint Verified Answer…”, all of legal age, married, Filipinos, and with postal address at c/o Barangay Hall, Barangay xxx, xxx St., xxx Village, xxx, xxx City, under oath, depose: that we are the protestees in the foregoing Joint Verified Answer; that we caused the preparation thereof; that we have read its contents; and that the same are true and correct of our own direct personal knowledge.

Further, pursuant to Rule 7 of the 1997 Rules of Civil Procedure and existing Supreme Court circulars on election protests and matters, we hereby certify that we have not heretofore commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that to the best of our knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; and that if we should hereafter learn that other similar or related actions or proceedings has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, we undertake to report that fact within five (5) days therefrom to this court.

Las Pinas City, November 23, 2010.



(SIGNATURES)


SUBSCRIBED and sworn to before me in Las Pinas City, on November 24, 2010, affiants showing their respective competent proofs of identity as stated above immediately below their respective names.


Notary Public
Doc. No. ____
Page No. ____
Book No. ____
Series of 2010.



Cc:

Atty. X x x
Counsel for Protestants


EXPLANATION

A copy of this pleading is served on the opposing counsel via registered mail due to the distance of his law office and the lack of field staff of undersigned counsel at this time.


MANUEL J. LASERNA JR.