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MAYOR
QUINTIN B. SALUDAGA, Petitioner, - versus - COMMISSION ON ELECTIONS AND ARTEMIO BALAG, Respondents. |
G.R. Nos. 189431 & 191120
Present: PUNO, C.J., CARPIO, CARPIO MORALES VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, ABAD,* VILLARAMA, JR., PEREZ, and
MENDOZA, JJ. Promulgated: April 7, 2010 |
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VILLARAMA, JR., J.:
The
two (2) consolidated petitions for certiorari and prohibition before us arose
from the election protest filed by respondent Artemio Balag against petitioner
Quintin B. Saludaga which was docketed as EP Case No. A-88 before the Regional
Trial Court (RTC) of Allen,
The
Petition[1] for Certiorari and
Prohibition in G.R. No. 189431 seeks to nullify the
On the
other hand, the Ad Cautelam Petition
for Certiorari and Prohibition[4] in G.R. No. 191120
assails the January 20, 2010 Resolution[5] of the COMELEC en banc which (1) granted respondent’s Manifestation
and Motion to Dismiss;[6] (2) denied petitioner’s
Verified Motion for Reconsideration[7] of the August 12,
2009 Resolution[8] of the COMELEC,
Second Division; and (3) denied petitioner’s Extremely Urgent Motion for
Reconsideration[9] of the September
4, 2009 Order of the COMELEC, Second Division.
The facts are as follows.
Petitioner Quintin B. Saludaga and respondent Artemio Balag
were candidates for Mayor of Lavezares,
On
In a Decision[10] dated
On
On
On
Aggrieved, Saludaga filed an Extremely Urgent Motion for
Reconsideration with the COMELEC en banc
on
While the petition in G.R. No. 189431 was pending, the
COMELEC en banc issued the assailed
Resolution dated January 20, 2010 denying reconsideration to both the September
4, 2009 Order and August 12, 2009 Resolution of the Second Division, and
granting Balag’s motion to dismiss. The
COMELEC en banc based its denials
solely on a finding that Saludaga committed forum shopping when he filed a
motion for reconsideration with the Second Division and a petition for certiorari
in the Supreme Court, both to question the Order dated
Hence, the Ad
Cautelam Petition for Certiorari and Prohibition in G.R. No. 191120.
On
Petitioner Saludaga poses the following issues for our
determination:
In G.R. No. 189431
WHETHER
OR NOT THE PUBLIC RESPONDENT COMELEC SECOND DIVISION COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION IN ISSUING THE
QUESTIONED ORDER ON
In G.R. No. 191120
WHETHER
OR NOT THE PUBLIC RESPONDENT COMELEC SECOND DIVISION & EN BANC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION IN
ISSUING THE QUESTIONED RESOLUTIONS ON
The Arguments of the Parties
G.R. No. 189431
Petitioner
charges the Second Division of COMELEC with grave abuse of discretion for
allowing execution during the pendency of the motion for reconsideration of its
To refute the allegation as regards his victory, respondent
Balag invokes the
Respondent
also calls the Court’s attention to various suspension orders against
petitioner relative to pending criminal cases against him before the
Sandiganbayan and the Department of Justice.
Respondent believes that these will prevent petitioner from effectively
discharging the duties of a mayor. He
further accuses petitioner of forum shopping for allegedly assailing before
this Court the Second Division’s August 12, 2009 Resolution and September 4,
2009 Order, which are also the subjects of his motions for reconsideration
before the COMELEC en banc.
G.R. No. 191120
In this Petition for Certiorari and Prohibition, petitioner
ascribes grave abuse of discretion to both the Second Division of COMELEC and
the COMELEC en banc for declaring respondent
as the winning Mayor of Lavezares,
Petitioner insists that he did not engage in forum shopping
to warrant the COMELEC en banc’s
outright denial of his Verified Motion for Reconsideration of the August 12,
2009 Resolution and his Extremely Urgent Motion for Reconsideration of the
September 4, 2009 Order. According to
petitioner, the only action he initiated to question the September 4, 2009
Order is the special civil action for certiorari in G.R. No. 189431, his motion
for reconsideration of the same Order before the COMELEC being a mere incident
of the election protest filed by respondent.
Neither is there similarity in the subject matter involved and the
parties concerned.
Also, petitioner contests the January 20, 2010 Resolution
of the COMELEC en banc insofar as it
granted respondent’s Manifestation and Motion to Dismiss which is a prohibited
pleading under Rule 13[22] of the Comelec
Rules of Procedure.
I. The Court’s Ruling in G.R. No.
189431
A. Whether petitioner violated the rule on forum shopping
Before we can proceed with a discussion of the contentious
issues posed in these petitions, we must first determine whether petitioner
indeed engaged in forum shopping.
Forum
shopping is the institution of two (2) or more suits in different courts,
either simultaneously or successively, in order to ask the courts to rule on the
same or related causes and/or to grant the same or substantially the same
reliefs.[23] There is forum shopping when as a result of
an adverse decision in one (1) forum, or in anticipation thereof, a party seeks
favorable opinion in another forum through means other than appeal or certiorari.[24]
Under paragraph
2, Section 5,[25] Rule 7 of the 1997
Rules of Civil Procedure, as amended, if the acts of the party or his
counsel clearly constitute willful and deliberate forum shopping, the same
shall be ground for summary dismissal with prejudice and shall constitute
direct contempt, as well as a cause for administrative sanctions.
In
determining whether a party violated the rule against forum shopping, the most
important factor to ask is whether the elements of litis pendencia are present, or whether a final judgment in one
case will amount to res judicata in
another.[26]
For the
principle of res judicata to apply,
the following elements must be present: (1) the judgment sought to bar the new
action must be final; (2) the decision must have been rendered by a court
having jurisdiction over the subject matter and the parties; (3) the
disposition of the case must be a judgment on the merits; and (4) there must be
as between the first and second actions, identity of parties, subject matter,
and cause of action.[27]
In the
present case, the second element is wanting.
Under Section
5(c), Rule 3 of the Comelec Rules of Procedure, any motion to reconsider
a decision, resolution, order or ruling of a division shall be resolved by the
Commission en banc except motions on
interlocutory orders of the division which shall be resolved by the division
which issued the order.
When the COMELEC, Second Division issued the September 4, 2009 Order,
the appeal of respondent’s election protest was still pending resolution by the
COMELEC en banc. Clearly, the
Since the
COMELEC en banc had no jurisdiction
over petitioner’s Extremely Urgent Motion for Reconsideration, its January 20,
2010 Resolution does not amount to res
judicata in relation to the present petition.
Notably, in
the certificate of forum shopping[29] of Saludaga’s
Petition before us, he disclosed that an Extremely Urgent Motion for
Reconsideration of the September 4, 2009 Order is also pending before the
COMELEC en banc. Even then, the mere filing of a separate
case, as in the original action for certiorari and prohibition filed by
petitioner in G.R. No. 189431, after filing a responsive pleading in the other
case, does not necessarily constitute forum shopping. To reiterate, there is forum shopping when as
a result of an adverse decision in one (1) forum, or in anticipation thereof, a
party seeks favorable opinion in another forum through means other than
appeal or certiorari. Clearly, there
is no forum shopping in this case to warrant an outright dismissal of the
petition in G.R. No. 189431.
B. Whether the September 4, 2009 Order granting execution
pending resolution of the motion for reconsideration is void
We shall
now turn to the main issue raised in the petition in G.R. No. 189431. Did the Second Division of COMELEC commit
grave abuse of discretion amounting to lack of or in excess of jurisdiction in
granting respondent’s motion for execution pending resolution of the motion for
reconsideration?
Under Section
2, Rule 19 of the Comelec Rules of Procedure, a party may file a motion
to reconsider a decision, resolution, order, or ruling of a division within
five (5) days from the promulgation thereof.
Such motion, if not pro forma, suspends the execution or implementation
of the decision, resolution, order or ruling.
The Comelec
Rules of Procedure does not contain an express provision on execution
pending appeal or resolution of the motion for reconsideration. In the past, this hiatus was conveniently
addressed by Section 1, Rule 41 of said Rules, thus:
SECTION 1. The
Rules of Court. - In the absence of any applicable provision in these
Rules, the pertinent provisions of the Rules of Court in the
Pertinently,
Section 2 (a), Rule 39 of the 1997 Rules of Civil Procedure, as amended,
provides:
SEC. 2. Discretionary execution. -
(a) Execution of
a judgment or final order pending appeal.
- On motion of the prevailing party with notice to the adverse party filed in the
trial court while it has jurisdiction over the case and is in possession of
either the original record or the record on appeal, as the case may be, at the
time of the filing of such motion, said court may, in its discretion, order
execution of a judgment or final order even before the expiration of the period
to appeal.
After the trial court has lost jurisdiction, the
motion for execution pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good
reasons to be stated in a special order after due hearing.
On
SEC. 11. Execution pending appeal. - On motion of the prevailing party with notice to the adverse party, the court, while still in possession of the original records, may, at its discretion, order the execution of the decision in an election contest before the expiration of the period to appeal, subject to the following rules:
(a) There must be a motion by the prevailing party
with three-day notice to the adverse party. Execution pending appeal shall not
issue without prior notice and hearing. There must be good reasons for the
execution pending appeal. The court, in a special order, must state the good or
special reasons justifying the execution pending appeal. Such reasons must:
(1) constitute superior circumstances demanding urgency that will outweigh the injury or damage should the losing party secure a reversal of the judgment on appeal; and
(2) be manifest, in the decision sought to be executed, that the defeat of the protestee or the victory of the protestant has been clearly established.
By
analogy, this standard is also applicable in the grant of execution pending resolution
of the motion for reconsideration of a decision, resolution, order or ruling of
a division of the COMELEC.
Petitioner
assails the
We shall
tackle each objection separately.
On August 4, 2009, the COMELEC
promulgated COMELEC Resolution No. 8654 for the purpose of adopting
rules on the payment of COMELEC appeal fees and on the disposition of motions
for reconsideration of decisions, resolutions and orders on election protest
cases, appeal cases and special relief cases of a division to conform to our
ruling in Aguilar v. COMELEC and Insoy.[30]
Item 6 of Comelec
Resolution No. 8654 provides:
6. If a motion for the execution of the
decision or resolution of the Division is filed prior to the filing of a Motion
for Reconsideration, or within two days after the filing of the Motion for
Reconsideration and the case was not yet certified to or elevated to the
Commission en banc, the Division may, at its own discretion:
a. Certify and elevate the case, together with the Motion for Execution
as part of the records of the case, to the Commission En Banc within the two day period as prescribed in Section 5, Rule
19 of the Rules of Court.
b. Stay for a period of not more than ten (10) days from the filing of
the Motion for Execution, the elevation of the case to the Commission En Banc, in order to resolve said Motion
for Execution. Upon the expiration of the ten-day period, the Division
shall immediately certify and elevate the case, together with all the records, to
the Commission En Banc for
appropriate action. (Emphasis supplied).
Prior to the filing of a motion for
reconsideration of a decision or resolution issued by a division of the COMELEC
or during the pendency of such motion for reconsideration but before the case
is certified or elevated to the COMELEC en banc, the motion for
execution may be acted upon by the division that issued the decision or
resolution. Under Item 6(a), a division
of the COMELEC may choose to elevate both the main action and the motion for
execution to the COMELEC en banc. Item 6(b), on the other hand, contemplates a
situation where the division decides to rule on the motion for the execution of
its decision or resolution. In the
latter, the division may defer the elevation of the case to the Commission en banc in order to resolve the
motion. After the lapse of ten (10) days
from the filing of the motion for execution, however, the division shall
immediately certify and elevate the case, together with all the records –
including the motion for execution – to the Commission en banc for appropriate action.
This describes the second scenario when the COMELEC en banc may rule on a motion for execution pending the resolution
of the motion for reconsideration of a decision or resolution of a
division.
In the case at hand, respondent filed
a motion for execution of the Resolution dated
We cannot agree.
In accordance with the express
provision of the law, the ten (10) days within which a division of the COMELEC
may suspend elevating the case to the Commission en banc is to be counted from the filing of the motion for
execution. The language of the law is
clear, plain and too simple to invite a different interpretation. Moreover, nowhere in COMELEC Resolution
No. 8654 does it say that a comment is required, much less, indispensable
before the division may rule on a motion for execution.
After the lapse of the 10-day period,
the only power (and duty) that a division has is to certify and elevate the
case, together with all the records, to the Commission en banc, for appropriate action. Hence, upon the lapse of the 10-day period or
after
Indeed, even if said Order was
promulgated within 10 days from the filing of the motion for execution, it
would still be void because Presiding Commissioner Ferrer alone signed it.
To justify the Presiding
Commissioner’s action, public respondent COMELEC invokes Section 6 (d), Rule 2
of the Comelec Rules of Procedure which provides,
SEC. 6. Powers and Duties of the
Presiding Commissioner.-The powers and duties of the Presiding Commissioner
of a Division when discharging its functions in cases pending before the
Division shall be as follows:
x x x x
(d) To sign interlocutory resolutions, orders or rulings and temporary
restraining orders in cases already assigned to the Division;
x x x x.
However,
this provision has been qualified by the amendment introduced by the Commission
en banc as reflected in the Excerpts[31]
of its regular en banc meeting held
on
3) The ponente in the preceding two paragraphs shall prepare
interlocutory orders for signature of the Chairman or Division Chairman. Orders
of substance, however, shall be referred to the Division/En Banc for clearance. (Emphasis supplied.)
An
order resolving a motion for execution is one (1) such order of substance that
requires more than the lone imprimatur of the Division Chairman. This is so because execution pending resolution
of the motion for reconsideration may issue only upon good or special reasons
contained in a special order. To
reiterate, such reasons must: (1) constitute superior circumstances demanding
urgency that will outweigh the injury or damage should the losing party secure
a reversal of the judgment on appeal; and (2) be manifest, in the decision
sought to be executed, that the defeat of the protestee or the victory of the
protestant had been clearly established.
These stringent requirements demand more than a cursory evaluation of a
motion for execution pending reconsideration.
Hence, the need to refer such order for clearance by the Division or the
COMELEC en banc, as the case may
be.
This amendment is
reflected in Item 6, COMELEC Resolution No. 8654 which identifies the division
as the one (1) in possession of the discretion to either: (1) certify and
elevate the case, together with the motion for execution, to the Commission en banc within the two-day period
prescribed in Section 5,[32] Rule 19 of the Comelec Rules of Procedure, or (2) stay, for a
period of not more than ten (10) days from the filing of a motion for
execution, the elevation of the case to the Commission en banc, in order to resolve said motion. Alternatively, upon the expiration of the
10-day period, the decision may immediately certify and elevate the case,
together with all the records, to the Commission en banc for appropriate action.
The discretion to allow execution
pending reconsideration belongs to the division that rendered the assailed
decision, order or resolution, or the COMELEC en banc, as the case may be – not to the Presiding
Commissioner. To be sure, a writ of
execution pending resolution of the motion for reconsideration of a decision of
the division is not granted as a matter of right such that its issuance becomes
a ministerial duty that may be dispensed even just by the Presiding
Commissioner.
II. The Court’s Ruling in G.R. No.
191120
Prescinding
from our finding that petitioner did not commit forum shopping, the COMELEC en banc erred in denying outright
petitioner’s Verified Motion for Reconsideration of the August 12, 2009
Resolution.
Moreover,
we agree with petitioner that the COMELEC en
banc also erred in granting the Manifestation and Motion filed by
respondent. Under Section 1(a),[33] Rule 13 of the Comelec
Rules of Procedure, a motion to dismiss is among the pleadings which are
not allowed in the proceedings before the Commission.
Finally,
in his Verified Motion for Reconsideration, petitioner raised factual issues,
specifically, on the appreciation of votes and the discrepancy in the number of
votes credited to each candidate in four (4) precincts. However, the appreciation of contested ballots and election
documents involves a question of fact best left to the determination of the
COMELEC, a specialized agency tasked with the supervision of elections all over
the country. After all, it is the constitutional commission vested with
the exclusive original jurisdiction over election contests involving regional,
provincial and city officials, as well as appellate jurisdiction over election
protests involving elective municipal and barangay officials.[34]
Hence,
we deem it proper to remand this case to the COMELEC en banc, in order that it may resolve petitioner’s motion for
reconsideration of the Resolution dated
WHEREFORE, the petition in G.R.
No. 189431 is GRANTED. The
The
petition in G.R. No. 191120 is PARTLY
GRANTED. The
Respondent
Artemio H. Balag is ordered to CEASE AND
DESIST from performing the functions of Mayor of Lavezares,
Let
this case be REMANDED to the COMELEC
en banc for adjudication on the
merits of petitioner’s Verified Motion for Reconsideration of the
This
Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
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MARTIN S. VILLARAMA, JR. Associate Justice |
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REYNATO S. PUNO Chief Justice |
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ANTONIO T. CARPIO Associate Justice |
RENATO C. CORONA Associate Justice |
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CONCHITA CARPIO MORALES Associate Justice |
PRESBITERO J. VELASCO, JR. Associate Justice |
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ANTONIO
EDUARDO B. NACHURA Associate Justice |
TERESITA
J. LEONARDO-DE CASTRO Associate Justice |
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ARTURO D. BRION Associate Justice |
DIOSDADO M. PERALTA Associate Justice |
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LUCAS P. BERSAMIN Associate Justice |
MARIANO C. Associate Justice |
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(On official business) ROBERTO A. ABAD Associate Justice |
JOSE Associate Justice |
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JOSE CATRAL Associate Justice |
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C E R T I F I C A T I O N
Pursuant
to Section 13, Article VIII of the 1987 Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.
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REYNATO S. PUNO Chief Justice |
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* On official business.
[1] Rollo (G.R. No. 189431), pp. 3-47.
[2]
[3]
[4] Rollo (G.R. No. 191120), pp. 17-44.
[5]
[6]
[7]
[8]
[9] Supra, note 6.
[10] Rollo (G.R. No. 189431), pp. 61-101.
[11]
[12]
[13]
[14]
[15] Rollo (G.R. No. 191120), p. 169.
[16] Rollo (G.R. No. 189431), p. 30.
[17] Rollo (G.R. No. 191120), p. 35.
[18] Sec. 2. Period
for Filing Motions for Reconsideration. – A motion to reconsider a
decision, resolution, order, or ruling of a Division shall be filed within five
(5) days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution or implementation of
the decision, resolution, order or ruling. (Emphasis supplied.)
[19] 6. If a motion for the execution of the decision or resolution of the Division is filed prior to the filing of a Motion for Reconsideration, or within two days after the filing of the Motion for Reconsideration and the case was not yet certified to or elevated to the Commission en banc, the Division may, at its own discretion:
xxx
(b) Stay for a period of not more than ten (10) days from the filing of the Motion for Execution, the elevation of the case to the Commission En Banc, in order to resolve said Motion for Execution. Upon the expiration of the ten-day period, the Division shall immediately certify and elevate the case, together with all the records, to the Commission En Banc for appropriate action.
[20] in
the matter of adopting rules of procedure on the payment of the comelec appeal
fees and on the disposition of motions for reconsideration of decisions,
resolutions and orders on election protest cases (epc), election appeal cases (eac)
and special relief cases (spr) of a division of the commission on elections to
conform with the supreme court decision in jerry
b. aguilar v. commission on elections and romulo r. insoy (g.r. no. 185140),
promulgated on june 30, 2009.
[21] Precincts 26A [E.R. No. 5400942], 37A [5401000], 68A/B [E.R. No. 5400959] and 71A/B [E.R. No. 5400995].
[22] Section 1. What Pleadings are not Allowed.-The following pleadings are not allowed:
(a) motion to dismiss;
xxxx
(g) supplemental pleadings in special actions and in special cases.
[23] Young v. Keng Seng, G.R. No. 143464, March 5, 2003, 398 SCRA 629, 636-637.
[24] National
Electrification Administration (NEA) v.
[25] SEC. 5. Certification against forum shopping.-
The plaintiff or principal party shall certify under oath in the complaint or
other initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith: (a) that he
has not theretofore commenced any action or filed any claim involving the same
issues in any court, tribunal or quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is pending therein; (b) if there is such other pending action
or claim, a complete statement of the present status thereof; and (c) if he
should thereafter learn that the same or similar action or claim has been filed
or is pending, he shall report that fact within five (5) days therefrom to the
court wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (Emphasis supplied.)
[26] Young v. Keng Seng, supra at 638.
[27] Republic
v. Yu, G.R. No. 157557,
[28] City
of
[29] Rollo (G.R. No. 189431), p. 46.
[30] G.R. No. 185140,
[31] EXCERPTS FROM THE MINUTES OF THE REGULAR EN BANC MEETING OF THE COMMISSION ON
ELECTIONS HELD ON
Present:
Chairman Bernardo P. Pardo
Commissioner Regalado E. Maambong
Commissioner Julio F. Desamito
Commissioner Teresita Dy-Liacco Flores
Commissioner Japal M. Guiani
xxx xxx xxx
In the matter of
the Memorandum dated
RESOLVED TO ADOPT THE FOLLOWING AMENDMENTS:
1) All cases within the original jurisdiction of the Commission En Banc, if not yet assigned or consulted upon, shall be assigned to a ponente whose name shall be kept confidential;
2) All incoming cases on appeal from rulings of courts of primary jurisdiction shall be raffled by the Chairman three (3) at a time so that each commissioner will have an involvement;
3) The ponente in the preceding two paragraphs shall prepare interlocutory orders for signature of the Chairman or Division Chairman. Orders of substance, however, shall be referred to the Division/En Banc for clearance.
4) Certiorari petitions shall be referred to the Chairman, who shall have the same raffled for study and recommendation to the Commission en banc;
5) Cases related to a previous case may be assigned to the same ponente;
6) There shall be equitable distribution of cases.
Accordingly, the Election Contests Adjudication Department shall incorporate the foregoing amendments in the Rules of Procedure of the Commission.
RESOLVED, moreover, to temporarily suspend the implementation of the Rules of Procedure until the same is revised, per the forgoing amendments or the caseload substantially reduced.
Let the election Contests Adjudication Department, and the Office of the Clerk of the Commission, implement this resolution.
xxx xxx xxx
This is to certify that the foregoing is a
true and correct excerpt from the minutes of the Special en banc meeting of the Commission on Elections held on
(Sgd.) MA. JOSEFINA E. DELA CRUZ
Officer-in-Charge
Office of the COMELEC Secretary
[32] Sec. 5. How Motion for Reconsideration
Disposed Of. – Upon the filing of a motion to reconsider a decision,
resolution, order or ruling of a Division, the Clerk of Court concerned shall,
within twenty-four (24) hours from the filing thereof, notify the Presiding
Commissioner. The latter shall within
two (2) days thereafter certify the case to the Commission en banc.
[33] Supra, note 22.
[34] Flauta,
Jr. v. Commission on Elections, G.R.
No. 184586,