After careful examination of the records of the case, this Commission (First Division) makes the following observation:
- Protestant paid the cash deposit amounting to one hundred thousand pesos (P100,000.00) on June 3, 2010 as evidenced by O.R. No. 1118105; and
- Paragraph nos. 9 to 28 of the initiatory petition filed by the Protestant set forth the specific details of the acts and omissions complained of against the Protestee.
It is therefore concluded that the payment by the Protestant on June 3, 2010 is a substantial compliance with the requirement of COMELEC Resolution No. 8804, taking into consideration Section 9(e), Rule 6 of said Resolution. Furthermore, the Protestant has likewise essentially complied with Section 7(g), Rule 6 of the above-mentioned Resolution.
In view of the foregoing, this Commission (First Division) RESOLVES to DENY the Protestees special affirmative defenses.
SO ORDERED.8
The Protestees August 28, 2010 “Motion for Reconsideration with Prayer to Certify the Case to the Commission En Banc” relative to the Order issued by the Commission (First Division) dated August 13, 2010 is hereby DENIED for failure to show that the assailed order is contrary to law
Without going into the merits of the protest, the allegations in the protestants petition have substantially complied with the requirements of COMELEC Resolution No. 8804 that will warrant the opening of the ballot boxes in order to resolve not only the issues raised in the protest but also those set forth in the Protestees answer. When substantial compliance with the rules is satisfied, allowing the protest to proceed is the best way of removing any doubt or uncertainty as to the true will of the electorate. All other issues laid down in the parties pleadings, including those in the Protestees special and affirmative defenses and those expressed in the preliminary conference brief, will best be threshed out in the final resolution of the instant case.
The prayer to elevate the instant Motion for Reconsideration to the Commission En Banc is DENIED considering that the 13 August 2010 Order is merely interlocutory and it does not dispose of the instant case with finality, in accordance with Section 5(c), Rule 3 of the COMELEC Rules of Procedure.
SO ORDERED.
THE RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN REFUSING TO DISMISS THE PROTEST FOR INSUFFICIENCY IN FORM AND CONTENT.
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.
To begin with, the power of the Supreme Court to review decisions of the Comelec is prescribed in the Constitution, as follows:“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]
“We have interpreted this provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.” This decision must be a final decision or resolution of the Comelec en banc, not of a division, certainly not an interlocutory order of a division. The Supreme Court has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the Commission on Elections.
The mode by which a decision, order or ruling of the Comelec en banc may be elevated to the Supreme Court is by the special civil action of certiorari under Rule 65 of the 1964 Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedure, as amended.
Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A motion for reconsideration is a plain and adequate remedy provided by law. Failure to abide by this procedural requirement constitutes a ground for dismissal of the petition.
In like manner, a decision, order or resolution of a division of the Comelec must be reviewed by the Comelec en banc via a motion for reconsideration before the final en banc decision may be brought to the Supreme Court on certiorari. The pre-requisite filing of a motion for reconsideration is mandatory.xxx25
As to the issue of whether or not the case should be referred to the COMELEC en banc, this Court finds the respondent COMELEC First Division correct when it held in its order dated February 28, 1996 that no final decision, resolution or order has yet been made which will necessitate the elevation of the case and its records to the Commission en banc. No less than the Constitution requires that election cases must be heard and decided first in division and any motion for reconsideration of decisions shall be decided by the Commission en banc. Apparently, the orders dated July 26, 1995, November 15, 1995 and February 28, 1996 and the other orders relating to the admission of the answer with counter-protest are issuances of a Commission in division and are all interlocutory orders because they merely rule upon an incidental issue regarding the admission of Espinosa's answer with counter-protest and do not terminate or finally dispose of the case as they leave something to be done before it is finally decided on the merits. In such a situation, the rule is clear that the authority to resolve incidental matters of a case pending in a division, like the questioned interlocutory orders, falls on the division itself, and not on the Commission en banc. Section 5 (c), Rule 3 of the COMELEC Rules of Procedure explicitly provides for this,Sec. 5. Quorum; Votes Required xxx
xxx
(c) 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. (emphasis provided)
Furthermore, a look at Section 2, Rule 3 of the COMELEC Rules of Procedure confirms that the subject case does not fall on any of the instances over which the Commission en banc can take cognizance of. It reads as follows:Section 2. The Commission en banc. — The Commission shall sit en banc in cases hereinafter specifically provided, or in pre-proclamation cases upon a vote of a majority of the members of a Commission, or in all other cases where a division is not authorized to act, or where, upon a unanimous vote of all the members of a Division, an interlocutory matter or issue relative to an action or proceeding before it is decided to be referred to the Commission en banc.
In the instant case, it does not appear that the subject controversy is one of the cases specifically provided under the COMELEC Rules of Procedure in which the Commission may sit en banc. Neither is it shown that the present controversy a case where a division is not authorized to act nor a situation wherein the members of the First Division unanimously voted to refer the subject case to the Commission en banc. Clearly, the Commission en banc, under the circumstances shown above, can not be the proper forum which the matter concerning the assailed interlocutory orders can be referred to.
In a situation such as this where the Commission in division committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending before it and the controversy did not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved party is not to refer the controversy to the Commission en banc as this is not permissible under its present rules but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court. (Bold emphasis supplied)
In Miguel v. COMELEC, the Court belittled the petitioners argument that the protestant had no cause of action, as the allegations of fraud and irregularities, which were couched in general terms, were not sufficient to order the opening of ballot boxes and counting of ballots. The Court states the rules in election protests cognizable by the COMELEC and courts of general jurisdiction, as follows:The rule in this jurisdiction is clear and jurisprudence is even clearer. In a string of categorical pronouncements, we have consistently ruled that when there is an allegation in an election protest that would require the perusal, examination or counting of ballots as evidence, it is the ministerial duty of the trial court to order the opening of the ballot boxes and the examination and counting of ballots deposited therein.
In a kindred case, Homer Saquilayan v. COMELEC, the Court considered the allegations in an election protest, similar to those in this case, as sufficient in form and substance.
Again, in Dayo v. COMELEC, the Court declared that allegations of fraud and irregularities are sufficient grounds for opening the ballot boxes and examining the questioned ballots. The pronouncement is in accordance with Section 255 of the Omnibus Election Code, which reads:Judicial counting of votes in election contest. - Where allegations in a protest or counter-protest so warrant, or whenever in the opinion of the court in the interests of justice so require, it shall immediately order the book of voters, ballot boxes and their keys, ballots and other documents used in the election be brought before it and that the ballots be examined and the votes recounted.
In this case, the COMELEC Second Division found that the allegations in the protest and counter-protest warranted the opening of the contested ballot boxes and the examination of their contents to settle at once the conflicting claims of petitioner and private respondent.
The Court, however, will not indulge in the presumption that nothing would go wrong, that a successful automation election unmarred by fraud, violence, and like irregularities would be the order of the moment on May 10, 2010. Neither will it guarantee, as it cannot guarantee, the effectiveness of the voting machines and the integrity of the counting and consolidation software embedded in them. That task belongs at the first instance to Comelec, as part of its mandate to ensure clean and peaceful elections. This independent constitutional commission, it is true, possesses extraordinary powers and enjoys a considerable latitude in the discharge of its functions. The road, however, towards successful 2010 automation elections would certainly be rough and bumpy. The Comelec is laboring under very tight timelines. It would accordingly need the help of all advocates of orderly and honest elections, of all men and women of goodwill, to smoothen the way and assist Comelec personnel address the fears expressed about the integrity of the system. Like anyone else, the Court would like and wish automated elections to succeed, credibly.32cralaw
Endnotes:
1 Rollo, pp. 34-35.
2 Id., p. 37.
3 Id., pp. 38-77.
4 Id., p. 8.
5 Supra, note 3.
6 Id., pp. 78-95.
7 Supra, note 1.
8 Emphasis supplied.
9 Section 2. Procedure in Making Decisions.— The conclusions of the Commission in any case submitted to it for decision shall be reached in consultation before the case is assigned by raffle to a Member for the writing of the opinion. A certification to this effect signed by the Chairman or Presiding Commissioner shall be incorporated in the decision. Any member who took no part or dissented, or abstained from a decision or resolution must state the reason therefor.
Every decision shall express therein clearly and distinctly the facts and the law on which it is based. In its decision, the Commission shall be guided by the principle that every ballot is presumed to be valid unless there is clear and good reason to justify its rejection and that the object of the election is to obtain the true expression of the voters.
10 In Re: COMELEC Rules of Procedure on Disputes in an Automated Election System in connection with the May 10, 2010 Elections.
11 Section 7. Contents of the protest of petition.— An election protest or petition for quo warranto shall specifically state the following facts:
xxx
g) A detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts.
12 Section 1. Grounds of Motion for Reconsideration.— A motion for reconsideration may be filed on the grounds that the evidence is insufficient to justify the decision, order or ruling; or that the said decision, is contrary to law.
13 Section 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 ECAD Clerk 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.
14 Section 6. Duty of ECAD Director to Calendar Motion for Resolution.—The ECAD Director concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten days from the certification thereof.
15 Rollo, p. 120.
16 Section 1. Commencement of Action or Proceedings by Parties.—Any natural or juridical person authorized by these rules to initiate any action or proceeding shall file with the Commission a protest or petition alleging therein his personal circumstances as well as those of the protestee or respondent, the jurisdictional facts, and a concise statement of the ultimate facts constituting his cause or causes of action and specifying the relief sought. He may add a general prayer for such further or other relief as may be deemed just or equitable.
17 G.R. No. 123037, March 21, 1997, 270 SCRA 340.
18 Rollo, pp. 128-138.
19 G.R. No. 181478, July 15, 2009, 593 SCRA 139.
20 Rollo, p. 37 (emphasis supplied).
21 Section 9. Summary dismissal of election contest. - The Commission shall summarily dismiss, motu proprio, an election protest and counter-protest on the following grounds: xxx b) The protest is insufficient in form and content as required in Section 7 hereof; xxx
22 G.R. No. 188456, September 10, 2009, 599 SCRA 69.
23 Rollo, pp. 23-24.
24 G.R. No. 143398, October 25, 2000, 344 SCRA 358, 365-366; reiterated in, among others, Jumamil v. Commission on Elections, G.R. Nos. 167989-93, March 6, 2007, 517 SCRA 553; Dimayuga v. Commission on Elections, G.R. No. 174763, April 24, 2007, 522 SCRA 220; Cayetano v. Commission on Elections, G.R. No. 193846, April 12, 2011.
25 Emphasis supplied.
26 G.R. No. 124033, September 25, 1997, 279 SCRA 463, 471-473. See also Repol v. Commission on Elections, G.R. No. 161418, April 28, 2004, 428 SCRA 321.
27 Dela Llana v. Commission on Elections, G.R. No. 152080, November 28, 2003, 416 SCRA 638.
28 Benito v. Commission on Elections, G.R. No. 106053, August 17, 1994, 235 SCRA 436, 422.
29 Supra, note 19 at pp. 151-153.
30 Supra, note 22.
31 Entitled “An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, Providing Funds Therefor and For Other Purposes.”
32 Supra, note 22 at pp. 153-154.