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[JOSELITO R. MENDOZA v. COMELEC](http://lawyerly.ph/juris/view/cd21c?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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EN BANC

[ GR No. 191084, Mar 25, 2010 ]

JOSELITO R. MENDOZA v. COMELEC +

DECISION

630 Phil. 432

EN BANC

[ G.R. No. 191084, March 25, 2010 ]

JOSELITO R. MENDOZA, PETITIONER, VS. COMMISSION ON ELECTIONS AND ROBERTO M. PAGDANGANAN, RESPONDENTS.

D E C I S I O N

PEREZ, J.:

When the language of the law is clear and explicit, there is no room for interpretation, only application. And if statutory construction be necessary, the statute should be interpreted to assure its being in consonance with, rather than repugnant to, any constitutional command or prescription.[1] It is upon these basic principles that the petition must be granted.

The factual and procedural antecedents are not in dispute.

Petitioner Joselito R. Mendoza was proclaimed the winner of the 2007 gubernatorial election for the province of Bulacan, besting respondent Roberto M. Pagdanganan by a margin of 15,732 votes. On 1 June 2007, respondent filed the Election Protest which, anchored on the massive electoral fraud allegedly perpetrated by petitioner, was raffled to the Second Division of the Commission on Elections (COMELEC) as EPC No. 2007-44. With petitioner's filing of his Answer with Counter-Protest on 18 June 2007, the COMELEC proceeded to conduct the preliminary conference and to order a revision of the ballots from the contested precincts indicated in said pleadings.

Upon the evidence adduced and the memoranda subsequently filed by the parties, the COMELEC Second Division went on to render the 1 December 2009 Resolution, which annulled and set aside petitioner's proclamation as governor of Bulacan and proclaimed respondent duly elected to said position by a winning margin of 4,321 votes. Coupled with a directive to the Department of Interior and Local Government to implement the same, the resolution ordered petitioner to immediately vacate said office, to cease and desist from discharging the functions pertaining thereto and to cause a peaceful turn-over thereof to respondent.

Dissatisfied, petitioner filed a Motion for Reconsideration of the foregoing resolution with the COMELEC En Banc. Against respondent's Motion for Execution of Judgment Pending Motion for Reconsideration, petitioner also filed an Opposition to the Motion for Execution before the COMELEC Second Division. On 8 February 2010, however, the COMELEC En Banc issued a Resolution, effectively disposing of the foregoing motions/incidents in this wise:

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 December 1, 2009 ANNULLING the proclamation of JOSELITO R. MENDOZA as the duly elected Governor of Bulacan and DECLARING ROBERTO M. PAGDANGANAN as duly elected to said Office is AFFIRMED with modification.

Considering the proximity of the end of the term of 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 to VACATE said office in favor of ROBERTO M. PAGDANGANAN.

Let a copy of this Resolution be furnished the Secretary of the Department of Interior and Local Government, the Provincial Election Supervisor of Bulacan, and the DILG Provincial Operations Officer of the Province of Bulacan. (Underscoring supplied)

On 11 February 2010, petitioner filed before the COMELEC an Urgent Motion to Recall the Resolution Promulgated on February 8, 2010 on the following grounds: (a) lack of concurrence of the majority of the members of the Commission pursuant to Section 5, Rule 3 of the COMELEC Rules of Procedure; (b) lack of re-hearing pursuant to Section 6, Rule 18 of the Rules; and (c) lack of notice for the promulgation of the resolution pursuant to Section 5, Rule 18 of said Rules. Invoking Section 13, Rule 18 of the same Rules, petitioner additionally argued that the resolution pertained to an ordinary action and, as such, can only become final and executory after 30 days from its promulgation.

On 12 February 2010, petitioner filed the instant Petition for Certiorari with an Urgent Prayer for the Issuance of a Temporary Restraining Order and/or a Status Quo Order and Writ of Preliminary Injunction. Directed against the 8 February 2010 Resolution of the COMELEC En Banc, the petition is noticeably anchored on the same grounds raised in petitioner's urgent motion to recall the same resolution before the COMELEC. In addition, the petitioner disputes the appreciation and result of the revision of the contested ballots.

In the meantime, it appears that the COMELEC En Banc issued a 10 February 2010 Order, scheduling the case for re-hearing on 15 February 2010, on the ground that "there was no majority vote of the members obtained in the Resolution of the Commission En Banc promulgated on February 8, 2010." At said scheduled re-hearing, it further appears that the parties agreed to submit the matter for resolution by the COMELEC En Banc upon submission of their respective memoranda, without further argument. As it turned out, the deliberations which ensued again failed to muster the required majority vote since, with three (3) Commissioners not taking part in the voting, and only one dissent therefrom, the assailed 1 December 2009 Resolution of the COMELEC Second Division only garnered three concurrences.

In their respective Comments thereto, both respondent and the Office of the Solicitor General argue that, in addition to its premature filing, the petition at bench violated the rule against forum shopping. Claiming that he received the 10 February 2010 Order of the COMELEC En Banc late in the morning of 12 February 2010 or when the filing of the petition was already underway, petitioner argued that: (a) he apprised the Court of the pendency of his Urgent Motion to Recall the Resolution Promulgated on 8 February 2010; and, (b) that the writ of execution ensconced in said resolution compelled him to resort to the petition for certiorari before us.

On 4 March 2010, the COMELEC En Banc issued an Order for the issuance of a Writ of Execution directing the implementation of the 1 December 2009 Resolution of the COMELEC Second Division. While the COMELEC Electoral Contests Adjudication Department (ECAD) issued the corresponding Writ of Execution on 5 March 2010, the record shows that COMELEC En Banc issued an Order on the same date, directing the ECAD to deliver said 4 March 2010 Order and 5 March 2010 Writ of Execution by personal service to the parties. Aggrieved, petitioner filed the following motions with the COMELEC En Banc on 5 March 2010, viz.: (a) Urgent Motion to Declare Null and Void and Recall Latest En Banc Resolution Dated March 4, 2010; and, (b) Urgent Motion to Set Aside 4 March 2010 En Banc Resolution Granting Protestant's Motion for Execution Pending Motion for Reconsideration.

On 8 March 2010, petitioner filed before us a Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a Temporary Restraining Order or a Status Quo Order. Contending that respondent's protest should have been dismissed when no majority vote was obtained after the re-hearing in the case, petitioner argues that: (a) the 4 March 2010 Order and 5 March 2010 Writ of Execution are null and void; (b) no valid decision can be rendered by the COMELEC En Banc without the appreciation of the original ballots; (c) the COMELEC ignored the Court's ruling in the recent case of Corral v. Commission on Elections;[2] and (d) the foregoing circumstances are indicative of the irregularities which attended the adjudication of the case before the Division and En Banc levels of the COMELEC.

Despite receipt of respondent's Most Respectful Urgent Manifestation which once again called attention to petitioner's supposed forum shopping, the Court issued a Resolution dated 9 March 2010 granting the Status Quo Ante Order sought in the petition. With respondent's filing of a Manifestation and Comment to said supplemental pleading on 10 March 2010, petitioner filed a Manifestation with Motion to Appreciate Ballots Invalidated as Written by One Person and Marked Ballot on 12 March 2010.

The submissions, as measured by the election rules, dictate that we grant the petition, set aside and nullify the assailed resolutions and orders, and order the dismissal of respondent's election protest.

The Preliminaries

More than the justifications petitioner proffers for the filing of the petition at bench, the public interest involved in the case militates against the dismissal of the pleading on technical grounds like forum shopping. On the other hand, to rule that petitioner should have filed a new petition to challenge the 4 March 2010 Order of the COMELEC En Banc is to disregard the liberality traditionally accorded amended and supplemental pleadings and the very purpose for which supplemental pleadings are allowed under Section 6, Rule 10 of the 1997 Rules of Civil Procedure.[3] More importantly, such a course of action would clearly be violative of the injunction against multiplicity of suits enunciated in a long catena of decisions handed down by this Court.

The Main Matter

Acting on petitioner's motion for reconsideration of the 1 December 2009 Resolution issued by the COMELEC Second Division, the COMELEC En Banc, as stated, initially issued the Resolution dated 8 February 2010, denying the motion for lack of merit and declaring the same resolution immediately executory. However, even before petitioner's filing of his Urgent Motion to Recall the Resolution Promulgated on 8 February 2010 and the instant Petition for Certiorari with an Urgent Prayer for the Issuance of a Temporary Restraining Order and/or a Status Quo Order and Writ of Preliminary Injunction, the record shows that the COMELEC En Banc issued the 10 February 2010 Resolution, ordering the re-hearing of the case on the ground that "there was no majority vote of the members obtained in the Resolution of the Commission En Banc promulgated on February 8, 2010." Having conceded one of the grounds subsequently raised in petitioner's Urgent Motion to Recall the Resolution Promulgated on February 8, 2010, the COMELEC En Banc significantly failed to obtain the votes required under Section 5(a), Rule 3 of its own Rules of Procedure[4] for a second time.

The failure of the COMELEC En Banc to muster the required majority vote even after the 15 February 2010 re-hearing should have caused the dismissal of respondent's Election Protest. Promulgated on 15 February 1993 pursuant to Section 6, Article IX-A and Section 3, Article IX-C of the Constitution, the COMELEC Rules of Procedure is clear on this matter. Without any trace of ambiguity, Section 6, Rule 18 of said Rule categorically provides as follows:

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.

The propriety of applying the foregoing provision according to its literal tenor cannot be gainsaid. As one pertaining to the election of the provincial governor of Bulacan, respondent's Election Protest was originally commenced in the COMELEC, pursuant to its exclusive original jurisdiction over the case. Although initially raffled to the COMELEC Second Division, the elevation of said election protest on motion for reconsideration before the Commission En Banc cannot, by any stretch of the imagination, be considered an appeal. Tersely put, there is no appeal within the COMELEC itself. As aptly observed in the lone dissent penned by COMELEC Commissioner Rene V. Sarmiento, respondent's Election Protest was filed with the Commission "at the first instance" and should be, accordingly, considered an action or proceeding "originally commenced in the Commission."

The dissent reads Section 6 of COMELEC Rule 18 to mean exactly the opposite of what it expressly states. Thus was made the conclusion to the effect that since no decision was reached by the COMELEC En Banc, then the decision of the Second Division should stand, which is squarely in the face of the Rule that when the Commission En Banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be re-heard, and if on re-hearing, no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission. The reliance is on Section 3, Article IX(C) of the Constitution which provides:

Section 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.

The dissent reasons that it would be absurd that for a lack of the necessary majority in the motion for reconsideration before the COMELEC En Banc, the original protest action should be dismissed as this would render nugatory the constitutional mandate to authorize and empower a division of the COMELEC to decide election cases.

We cannot, in this case, get out of the square cover of Section 6, Rule 18 of the COMELEC Rules. The provision is not violative of the Constitution.

The Rule, in fact, was promulgated obviously pursuant to the Constitutional mandate in the first sentence of Section 3 of Article IX(C). Clearly too, the Rule was issued "in order to expedite disposition of election cases" such that even the absence of a majority in a Commission En Banc opinion on a case under reconsideration does not result in a non-decision. Either the judgment or order appealed from "shall stand affirmed" or the action originally commenced in the Commission "shall be dismissed."

It is easily evident in the second sentence of Section 3 of Article IX(C) that all election cases before the COMELEC are passed upon in one integrated procedure that consists of a hearing and a decision "in division" and when necessitated by a motion for reconsideration, a decision "by the Commission En Banc."

What is included in the phrase "all such election cases" may be seen in Section 2(2) of Article IX(C) of the Constitution which states:

Section 2. The Commission on Elections shall exercise the following powers and functions:

xxxx

(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 of officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

Section 2(2) read in relation to Section 3 shows that however the jurisdiction of the COMELEC is involved, either in the exercise of "exclusive original jurisdiction" or an "appellate jurisdiction," the COMELEC will act on the case in one whole and single process: to repeat, in division, and if impelled by a motion for reconsideration, en banc.

There is a difference in the result of the exercise of jurisdiction by the COMELEC over election contests. The difference inheres in the kind of jurisdiction invoked, which in turn, is determined by the case brought before the COMELEC. When a decision of a trial court is brought before the COMELEC for it to exercise appellate jurisdiction, the division decides the appeal but, if there is a motion for reconsideration, the appeal proceeds to the banc where a majority is needed for a decision. If the process ends without the required majority at the banc, the appealed decision stands affirmed. Upon the other hand, and this is what happened in the instant case, if what is brought before the COMELEC is an original protest invoking the original jurisdiction of the Commission, the protest, as one whole process, is first decided by the division, which process is continued in the banc if there is a motion for reconsideration of the division ruling. If no majority decision is reached in the banc, the protest, which is an original action, shall be dismissed. There is no first instance decision that can be deemed affirmed.

It is easy to understand the reason for the difference in the result of the two protests, one as original action and the other as an appeal, if and when the protest process reaches the COMELEC En Banc. In a protest originally brought before the COMELEC, no completed process comes to the banc. It is the banc which will complete the process. If, at that completion, no conclusive result in the form of a majority vote is reached, the COMELEC has no other choice except to dismiss the protest. In a protest placed before the Commission as an appeal, there has been a completed proceeding that has resulted in a decision. So that when the COMELEC, as an appellate body, and after the appellate process is completed, reaches an inconclusive result, the appeal is in effect dismissed and resultingly, the decision appealed from is affirmed.

To repeat, Rule 18, Section 6 of the COMELEC Rules of Procedure follows, is in conformity with, and is in implementation of Section 3 of Article IX(C) of the Constitution.

Indeed, the grave abuse of discretion of the COMELEC is patent in the fact that despite the existence in its books of the clearly worded Section 6 of Rule 18, which incidentally has been acknowledged by this Court in the recent case of Marcoleta v. COMELEC,[5] it completely ignored and disregarded its very own decree and proceeded with the questioned Resolution of 8 February 2010 and Order of 4 March 2010, in all, annulling the proclamation of petitioner Joselito R. Mendoza as the duly elected governor of Bulacan, declaring respondent Roberto M. Pagdanganan as the duly elected governor, and ordering petitioner Joselito R. Mendoza to cease and desist from performing the functions of the Governor of Bulacan and to vacate said office in favor of respondent Roberto M. Pagdanganan.

The grave abuse of discretion of the COMELEC is underscored by the fact that the protest that petitioner Pagdanganan filed on 1 June 2007 overstayed with the COMELEC until the present election year when the end of the term of the contested office is at hand and there was hardly enough time for the re-hearing that was conducted only on 15 February 2010. As the hearing time at the division had run out, and the re-hearing time at the banc was fast running out, the unwanted result came about: incomplete appreciation of ballots; invalidation of ballots on general and unspecific grounds; unrebutted presumption of validity of ballots.

WHEREFORE, the petition is GRANTED. The questioned Resolution of the COMELEC promulgated on 8 February 2010 in EPC No. 2007-44 entitled "Roberto M. Pagdanganan v. Joselito R. Mendoza," the Order issued on 4 March 2010, and the consequent Writ of Execution dated 5 March 2010 are NULLIFIED and SET ASIDE. The election protest of respondent Roberto M. Pagdanganan is hereby DISMISSED.

SO ORDERED.

Peralta, Bersamin, Del Castillo, and Villarama, Jr., JJ., concur.
Puno,* C.J., certify that C.J. Puno voted to concur in the result of the ponencia of Justice Perez.
Carpio,** J., in the result, see separate opinion.
Corona, and Mendoza, JJ., no part.
Carpio Morales, J., concur in the result, please see separate opinion.
Velasco, Jr., J., please see concurring opinion.
Nachura, J., join the dissent of J. De Castro.
Leonardo-De Castro, and Abad, JJ., pls. see dissenting opinion.
Brion, J., join the dissenting opinion of J. T. De Castro.



* On official leave.

** Per Special Order No. 826, Senior Associate Justice Antonio T. Carpio is designated as Acting Chief Justice from March 17-30, 2010.

[1] Mutuc v. COMELEC, 146 Phil. 798, 805 (1970), citing cases.

[2] G.R. No. 190156, 12 February 2010.

[3] Sec. 6. Supplemental pleadings. - Upon motion of a party, the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading.

[4] Sec. 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.

[5] G.R. No. 181377, 24 April 2009.


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