EN
BANC
G.R. No. 191084 --- JOSELITO
R. MENDOZA, Petitioner, versus COMMISSION
ON ELECTIONS and ROBERTO M. PAGDANGANAN, Respondents.
Promulgated:
March 25, 2010
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DISSENTING
OPINION
ABAD, J.:
Challenged in this Petition for Certiorari
is the Resolution dated February 8, 2010 of the Commission on Elections
(COMELEC) in EPC 2007-44 entitled Roberto M. Pagdanganan v. Joselito R.
Mendoza.
Brief Antecedents
Petitioner Joselito R. Mendoza was
proclaimed winner in the May 14, 2007 gubernatorial race in the
On December 1, 2009 the COMELEC Second Division decided
the election protest and proclaimed Pagdanganan as the duly elected Governor of
Bulacan.
On February 8, 2010 the COMELEC En Banc denied
On February 10, 2010 the COMELEC En Banc issued an Order for the rehearing of the motion for
reconsideration on February 15, 2010. Meanwhile,
on February 12
Following its February 15 rehearing, the members of
the COMELEC En Banc maintained their
votes. On March 4, 2010 the En Banc issued an order directing the immediate
execution of the Second Division’s decision.
This prompted
Issue Subject of Concurring Opinion
I join the dissent of Justice Teresita J. Leonardo-De
Castro and in addition would like to add my thoughts on a key issue in this
case, namely:
Whether or not the failure of the COMELEC En Banc to muster the majority vote
required for denying petitioner
Discussion
The dissenting opinion of Justice
Teresita J. Leonardo-De Castro holds that, since the majority votes of four
Commissioners in the COMELEC En Banc
needed for granting Mendoza’s motion
for reconsideration of the decision of the Second Division could not be had,
the Division’s decision should be deemed affirmed.
But, adopting petitioner Mendoza’s position, the
majority opinion penned by Justice Perez’s submits that the result of a failure
of vote in the En Banc should be to set aside the Second Division’s
decision and dismiss Pagdanganan’s
election protest. Quite frankly, this
view is supported by the literal application of Section 6, Rule 18 of the
COMELEC Rules of Procedure which reads:
Sec. 6. Procedure
if Opinion is Equally Divided. - When the Commission en banc is equally
divided in opinion, or the necessary majority cannot be had, the case shall be
reheard, and if on rehearing no decision is reached, the action or proceeding
shall be dismissed if originally commenced in the Commission; in appealed
cases, the judgment or order appealed from shall stand affirmed; and in all
incidental matters, the petition or motion shall be denied.
Here, Pagdanganan filed his election protest, an
original action, directly with the COMELEC.
The Second Division to which the case was raffled heard the parties and
their evidence and rendered a decision in Pagdanganan’s favor. On
If the issue were to be decided based solely on Section
6, Rule 18 of the COMELEC rules of procedure, Justice Perez’s dissent could hardly
be debatable. But this is not the case. The COMELEC rules are inferior to and cannot
modify what the Constitution prescribes.
Thus:
One. Section 3,
Article IX-C, of the 1987 Constitution empowers every COMELEC Division to
decide election cases for the COMELEC as a body, not to act as commissioners
with mere recommendatory powers. Section
3 reads:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconside-ration of decisions shall be decided by the Commission en banc. (Underscoring supplied)
Actually, although the COMELEC “may sit en banc or in two divisions,” the
COMELEC en banc has no power to decide
election cases. “All such election cases,” says Section 3 above, “shall be heard and decided in division.”
The majority opinion’s theory that the Division’s
decisions in original actions are not decisions
if, on motion for reconsideration, the required vote of the En Banc cannot be had, contravenes
Section 3. Nothing in the provisions of
the Constitution implies a proposition that the decision-making process it
prescribed for the COMELEC is integrated in that the decision of the Division
is a half-decision in original election cases and needs to be approved by the En Banc.
Two. The COMELEC
cannot pass a rule that, when the En Banc
fails to muster the majority vote required for denying the losing party’s
motion for reconsideration, the decision of the Division shall be deemed
vacated or reversed.
Such rule will alter the scope of the power of the En Banc.
The latter’s power with respect to all kinds of election cases is limited to deciding motions for
reconsideration. Thus, the pertinent
portion of section 3, Article IX-C, of the 1987 Constitution, provides:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconside-ration of decisions shall be decided by the Commission en banc. (Underscoring supplied)
The reconsideration of a decision implies reexamination,
and possibly a different decision by the entity which initially decided it.[1] Since the En
Banc needs four votes to reconsider and set aside a Division’s decision, its
failure to muster such votes means that it is unable to exercise its power to
decide the motion for reconsideration before it. This also means that it cannot grant the
reconsideration asked of it by the losing party. Correct?
Consequently, a COMELEC-generated rule which says that such failure to
grant reconsideration is the equivalent of actually granting the reconsideration
is absurd. It also contravenes the
Constitution.
Three. The
Constitution does not make a distinction between election cases brought to the
COMELEC by appeal and those originally filed with it. The same Section 3 provides that “all such election cases shall be heard
and decided in division, provided that motions for reconsideration of decisions
shall be decided by the Commission en
banc.” There cannot be one way of disposing
of motions for reconsideration in original cases and another way of disposing
of motions for reconsideration in appealed cases. The distinction made by Section 6, Rule 18, of the COMELEC rules is unwarranted.
As stated above, it is to the Divisions that the
Constitution gave the power to decide all election cases, not to the En Banc.
It can be granted that the procedure that the Division may follow in
hearing and deciding appealed cases might differ from the procedure it will
follow in hearing and deciding original cases.
But is there a significant difference between these two kinds of cases
that will justify a divergence in results when, on motions for reconsideration,
the En Banc is unable to muster the
required vote for denying such motions?
There is none.
Indeed, the Supreme Court hears and decides both appealed and original
cases but it has never crossed its mind to decree that, in original cases filed
with it as distinguished from appealed cases, a failure to muster the required
vote for acting on a motion for reconsideration shall result in the reversal of
its decision. Such a rule would be an
outrage to the principle of fairness and to the Constitutional guarantee of due
process.
The resolution of the COMELEC en banc
being in harmony with both constitutional and statutory provisions, I vote to deny
the petition.
ROBERTO
A. ABAD
Associate Justice