EN BANC
G.R. No. 191084 (Joselito R. Mendoza v. Commission on Elections and
Roberto M. Pagdanganan)
Promulgated:
March 25, 2010
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CONCURRING OPINION
VELASCO, JR., J.:
Notwithstanding the passage of time, the clear and express provisions of
the Constitution on what constitute a majority vote on actions or proceeding
before the Commission on Elections (COMELEC) continue and should remain to
speak the words it plainly suggests.
Given this perspective, I respectfully submit this opinion.
A summary of the pertinent facts follows.
Petitioner Joselito R. Mendoza (petitioner Mendoza) and respondent Roberto
M. Pagdanganan (respondent Pagdanganan) were candidates for the gubernatorial post
in the
On June 1, 2007, respondent Pagdanganan filed an election protest with
the COMELEC questioning the outcome of the elections in all the five thousand
sixty-six (5,066) precincts which functioned in the thirteen (13)
municipalities and three (3) cities in the
On June 18, 2007, petitioner Mendoza filed an Answer With Counter-Protest[1] denying
petitioner Mendoza’s allegations of massive electoral fraud and claimed that
had it not been for the electoral fraud purportedly committed by respondent
Pagdanganan in nine municipalities, petitioner Mendoza would have been credited
with more votes.
Thereafter, a preliminary conference was conducted, after which the
COMELEC ordered a revision of the ballots involving the protested and
counter-protested precincts. The revision was conducted and supervised by the
COMELEC at its premises. Subsequently, on
As a result of the revision proceedings, the Second Division of the
COMELEC proclaimed respondent Pagdanganan as the duly elected governor of the
WHEREFORE, in view of the foregoing, the election protest is
hereby GRANTED. Consequently, the proclamation of Protestee Joselito R. Mendoza
is ANNULLED and SET ASIDE. Accordingly, Protestant Roberto M. Pagdanganan is
hereby proclaimed as the duly elected Governor of the
Protestee is ordered to IMMEDIATELY vacate the Office of the Provincial Governor of Bulacan; cease and desist from discharging functions thereof; and peacefully turn-over the said office to Protestant Pagdanganan.
Let the Department of Interior and Local Government implement this resolution.[3]
Subsequently, respondent Pagdanganan filed a Motion for Immediate
Execution of Judgment Pending Motion for Reconsideration[4]
dated December 1, 2009. Petitioner
By Resolution dated February 8, 2010 (the questioned Resolution), the COMELEC en
banc, by a 3:3:1 vote,
denied the motion for reconsideration filed by petitioner Mendoza. The
dispositive portion of the questioned
Resolution reads:
WHEREFORE, in view of the foregoing, the Commission En
Banc DENIES the Motion for Reconsideration for lack of merit. The
Resolution of the Commission (Second Division) promulgated on
Considering the proximity of the end of the term of the office involved, this Resolution is declared immediately executory.
ACCORDINGLY, the Commission En Banc hereby ISSUES a WRIT OF EXECUTION directing the Provincial Election Supervisor of Bulacan, in coordination with the DILG Provincial Operations Officer to implement the Resolution of the Commission (Second Division) dated December 1, 2009 and this Resolution of the Commission En Banc by ordering JOSELITO R. MENDOZA to CEASE and DESIST from performing the functions of Governor of the Province of Bulacan and VACATE said office in favor of ROBERTO M. PAGDANGANAN.
x x x x
On February 11, 2010, an Urgent Motion to Recall the Resolution
Promulgated on February 8, 2010[7]
(Urgent Motion) dated
February 10, 2010 was filed by petitioner Mendoza before the COMELEC. In the said Urgent Motion, petitioner
Mendoza contends, among others, that the desired majority, as mandated by
Section 5, Rule 3 of the COMELEC Rules of Procedure, was not obtained in the
COMELEC en banc considering that
only three commissioners voted to deny the motion for reconsideration, while
one dissented, and the remaining three commissioners took no part.
On
In the meantime, the COMELEC en banc, in view of the 3:3:1 vote, issued on February 10, 2010
an Order for the rehearing of the protest. In the said rehearing, the parties
agreed to submit the matter for resolution by the COMELEC en banc upon
the submission of their respective memoranda.
Upon deliberations, the commissioners voted in the same manner, particularly:
three concurred, three took no part, and one dissented from the Resolution dated December 1, 2009 of the
Second Division of COMELEC.
As against the foregoing factual milieu, this Court is now tasked to
ascertain whether the COMELEC committed grave abuse of discretion when it
rendered, and even subsequently affirmed, the questioned Resolution notwithstanding the absence of the required
majority in reaching a decision. Essentially, the issue for this Court’s
resolution is whether
the manner and procedure by which the commissioners of COMELEC voted in the
instant case was in accord with its own Rules of Procedure.
A careful examination of certain provisions of the Constitution, as well
as of the laws applicable in the instant case, will reveal that since the
concurrence of the majority of the members of the COMELEC en banc was
not achieved, the COMELEC committed grave abuse of discretion in issuing the questioned Resolution affirming the
ruling of its Second Division instead of dismissing the election protest of
respondent Pagdanganan.
All election cases shall be heard and decided in divisions, provided
that motions for reconsideration shall be decided by the COMELEC en banc
Under Section 3, Article IX-C of the 1987 Constitution, the COMELEC,
sitting en banc, does not have the authority to decide election cases in
the first instance as this authority belongs to the divisions of the COMELEC. Specifically:
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 reconsideration of decisions shall be decided by the Commission En Banc.
As the Court held in Pacificador v. COMELEC:[9]
Under Sec. 2, Article IV-C of the 1987 Constitution, the COMELEC exercises original jurisdiction over all contests, relating to the election, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over election contests involving elective municipal and barangay officials, and has supervision and control over the board of canvassers. The COMELEC sitting en banc, however, does not have the authority to hear and decide election cases, including pre-proclamation controversies in the first instance, as the COMELEC in division has such authority. The COMELEC en banc can exercise jurisdiction only on motions for reconsideration of the resolution or decision of the COMELEC in division. (Emphasis supplied)
As a matter of fact, if the COMELEC en banc renders a decision in
an election case in the first instance, said decision is void. As held in Municipal Board of Canvassers of Glan v.
COMELEC:[10]
Beginning with Sarmiento v. COMELEC and reiterated in subsequent cases, the most recent being Balindong v. COMELEC, the Court has upheld this constitutional mandate and consistently ruled that the COMELEC sitting en banc does not have the requisite authority to hear and decide election cases in the first instance. This power pertains to the divisions of the Commission and any decision by the Commission en banc as regards election cases decided by it in the first instance is null and void for lack of jurisdiction.
Verily, it is only when a motion for reconsideration is filed that the
COMELEC en banc hears the same. Nonetheless, this does not in any way mean
that the filing of such a motion constitutes an appeal to the COMELEC en banc.
As fittingly pointed out by Commissioner
Rene V. Sarmiento in his Dissenting
Opinion:
Furthermore,
no way by any stretch of imagination can this controversy be considered as an appealed case. Yes, it is true that the
instant Motion for Reconsideration assails the Resolution of the Second
Division. But this does not mean that it is an appeal from the said Second
Division’s ruling. Aside from the obvious legal difference between the two
reliefs, to construe a Motion for Reconsideration as an appeal would defeat the
purpose of the delineation made in Section 6 of Rule 18 of the COMELEC Rules of
Procedure with regard to the cases originally
commenced and those appealed.
Take note that all controversies brought to the Commission, either originally
or on appeal with the exception of election offenses, are first heard and
decided in the division level. The same is elevated to the Commission en banc when a Motion for
Reconsideration has been timely filed.
Significantly, the COMELEC, sitting en
banc or in divisions, is just one body. By analogy, even the Court which
hears and decides cases in divisions and en
banc is composed of only one body. Decisions of any division are not
appealable to the en banc, and decisions of each division and the en banc form acts of only one Supreme
Court.[11]
The adjudicatory power of the COMELEC consists of both original and
appellate jurisdiction
A distinction must be made as to whether an election case is brought
before the COMELEC in the exercise of its original or appellate
jurisdiction.
As stated in Section 2(2), Article IX-C of the 1987 Constitution, the
COMELEC is vested with adjudicatory power consisting of both original and
appellate jurisdictions, to wit:
Section 2. The Commission on Elections shall exercise the following powers and functions:
x x x x
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable.
Concomitantly, election protests involving elective regional, provincial or
city positions fall within the exclusive original jurisdiction of the COMELEC.
On the other hand, election protests involving elective municipal and
barangay positions fall within the exclusive original jurisdiction of the proper
regional trial court and municipal trial court, respectively. The COMELEC,
in turn, exercises appellate jurisdiction over the decisions of either court.[12]
While the Constitution grants COMELEC appellate jurisdiction, it is clear
that such appellate jurisdiction operates as a review by the COMELEC of
decisions of trial courts. There is really
no appeal within the COMELEC itself. As such, it is absurd to consider the
filing of a motion for reconsideration as an appeal from the COMELEC, sitting
in a division, to the COMELEC, sitting en
banc.
At best, the filing of a motion for reconsideration with the COMELEC en
banc of a decision or resolution
of the division of the COMELEC should be viewed as part of one integrated
process. Such motion for reconsideration
before the COMELEC en banc is
a constitutionally guaranteed remedial mechanism for parties aggrieved by a
division decision or resolution. However,
at the risk of repetition, it is not an appeal from the COMELEC division to the
en banc.
Considering the dichotomy of the jurisdiction and powers of the COMELEC,
the question now arises as to how the commission en banc should arrive
at a decision in the absence of the required majority of all its members.
A majority vote of all its members is needed
in order for the COMELEC en banc to reach a decision
The COMELEC is an independent constitutional commission. As such, the rule
set forth by the Constitution as to how constitutional commissions should
arrive at a decision applies to it.
As sanctioned by Section 7, Article IX-A of the 1987 Constitution:
Section 7. Each Commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. (Emphasis supplied.)
The foregoing constitutional provision was faithfully observed by the
COMELEC when it adopted the same in its own Rules of Procedure. Rule 3, Section 5(a) of the COMELEC Rules of
Procedure provides:
Section 5. Quorum; Votes Required.—(a) When sitting en banc, four (4) Members of the Commission shall constitute a quorum for the purpose of transacting business. The concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution, order or ruling.
In reinforcing the above-quoted provision, the Court, in Estrella v. COMELEC,[13]
prescribed that the majority of all the commissioners is necessary for
the pronouncement of a decision or resolution by the COMELEC en banc. Particularly:
Since Commissioner Lantion could not participate and vote in the issuance of the questioned order, thus leaving three (3) members concurring therewith, the necessary votes of four (4) or majority of the members of the COMELEC was not attained. The order thus failed to comply with the number of votes necessary for the pronouncement of a decision or order, as required under Rule 3, Section 5(a) of the COMELEC Rules of Procedure which provides:
Section 5. Quorum; Votes Required. – (a) When sitting en
banc, four (4) Members of the Commission shall constitute a quorum for the
purpose of transacting business. The concurrence of a majority of the
Members of the Commission shall be necessary for the pronouncement of a
decision, resolution, order or ruling.
WHEREFORE, the instant petition is GRANTED. The
Status Quo Ante Order dated
In
cases, however, where the COMELEC en banc is equally divided in opinion
or the necessary majority vote cannot be obtained, Rule 18, Section 6 of the 1993 COMELEC Rules
of Procedure applies:
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.
Based on the above-cited provision, if no decision is reached after the
case is reheard, there are two different remedies available to the COMELEC, to wit: (1) dismiss the action or
proceeding, if the case was originally commenced in the COMELEC; or (2)
consider as affirmed the judgment or order appealed from, in appealed cases. This rule adheres to the constitutional
provision that the COMELEC must decide by a majority of all its members.
Notably, it is evident that when Rule 18, Section 6 of the 1993 COMELEC Rules of
Procedure speaks of cases originally commenced in the COMELEC, the reference is
to election protests
involving elective regional, provincial or city positions falling within its
exclusive original jurisdiction. On the other
hand, when the same provision mentioned appealed cases, this has reference to
election protests involving elective municipal and barangay positions
cognizable by the COMELEC in the exercise of its appellate jurisdiction.
In the first instance, an election protest is originally commenced before
the COMELEC, which first decides by the division. If a motion for
reconsideration is subsequently filed with the COMELEC en banc and no
majority decision is reached even after a rehearing, then pursuant to Section
6, Rule 18 of the COMELEC Rules of Procedure, the election protest shall be
dismissed.
In the second instance, the trial court originally decides an election
protest. If the case is brought on
appeal to the COMELEC, which again shall first act thru a division, the
division’s decision may become the subject of a motion for reconsideration
filed with the COMELEC en banc. And
if before the en banc a majority decision is not reached even after a
rehearing, then, also pursuant to Section 6, Rule 18 of the COMELEC Rules of
Procedure, the appealed decision stands affirmed.
In both cases, however, if no motion for reconsideration is filed with
the COMELEC en banc, the decision or resolution of the division shall
remain.
Verily, since the election protest in the case at bar involves an
elective provincial position, specifically, the gubernatorial post in the
province of Bulacan, exclusive original jurisdiction over which is vested in
the COMELEC, the election protest filed by respondent Pagdanganan against
petitioner Mendoza should be dismissed for lack of necessary majority vote in
the COMELEC en banc.
On a final note, it is worthwhile to remember the Court’s ruling in Yangco v. The Division of the Court of First
Instance of the City of Manila,[14]
which warns us of the dangers in making unnecessary interpretation of clear and
unambiguous provisions of law:
There is no need for interpretation or construction of the word in the case before us. Its meaning is so clear that interpretation and construction are unnecessary. Our simple duty is to leave untouched the meaning with which the English language has endowed the word; and that is the meaning which the ordinary reader would accord to it on reading a sentence in which it was found. Where language is plain, subtle refinements which tinge words so as to give them the color of a particular judicial theory are not only unnecessary but decidedly harmful. That which has caused so much confusion in the law, which has made it so difficult for the public to understand and know what the law is with respect to a given matter, is in considerable measure the unwarranted interference by judicial tribunals with English language as found in statutes and contracts, cutting out words here and inserting them there, making them fit personal ideas of what the legislature ought to have done or what parties should have agreed upon, giving them meanings which they do not ordinarily have, cutting, trimming, fitting, changing and coloring until lawyers themselves are unable to advise their clients as to the meaning of a given statute or contract until it had been submitted to some court for its ‘interpretation and construction.’ As we said in the case of Lizarraga Hermanos vs. Yap Tico (24 Phil. Rep., 504, 513):
Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them. They are the very last functions which a court should exercise. The majority of the laws need no interpretation or construction. They require only application, and if there were more application and less construction, there would be more stability in the law, and more people would know what the law is.
Accordingly, I vote to grant the
petition.
PRESBITERO
J. VELASCO, JR.
Associate Justice