LOAY-The proclaimed barangay captain of Poblacion Ibabao filed Friday last week a notice to appeal before the Commission on Elections (Comelec) for reversal of a municipal circuit trial court decision dismissing him after finding irregularity in the counting of votes during the October 2007 polls. This was after the Municipal Circuit Trial Court (MCTC) Branch 13 in Loay, covering the Loay-Alburquerque-Baclayon jurisdiction, found that his staunch rival for the position of barangay captain of Poblacion Ibabao actually led by four votes based on recounting. In his seven-page decision, MCTC Branch 13 Acting Judge Jennifer Chavez-Marcos cited that of the 326 votes counted in favor of the proclaimed winner, Ricardo 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 Duco's rival, Narciso Avelino, as valid. This added four votes to Avelino, making it 325 instead of just 321 as previously counted. Avelino filed an instant election case on November 8, last year against Duco after four ballots bearing his nickname, Sisoy, were considered invalid during the canvassing in four precincts. On this, Avelino sought for the dismissal of Duco, alleging fraud in the synchronized barangay and Sangguniang Kabataan (SK) elections on October 29, last year. He called for a recounting of ballots from Precincts 0004A-0004B, 0005A-0005B, 0006A and 0007A-0007B. Duco denied Avelino's allegations of irregularity in the counting of the ballots for the barangay captain.

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. Moreover, the court found another stray vote for Duco as it contained the name “Aki” on the space for barangay captain, which “cannot stand for any particular candidate”. The court however, considered another objected ballot which contained in the space for barangay captain, the first name Ricky, which was neither the name nor the official nickname of Duco, and the surname Dugo, which was not his surname. The court explained that “while there is no evidence shown that Ricky is the nickname of…Ricardo Duco, it is undeniably the common and popular nickname for Ricardo”. It was also “accompanied by a surname that sounds very much like Duco”. The court also considered another vote for Duco where the ballot contained the name, R. Doka on the space for barangay captain.