EN BANC

G.R. No. 191084 : March 25, 2010

JOSELITO R. MENDOZA, Petitioner, v. COMMISSION ON ELECTIONS AND ROBERTO M. PAGDANGANAN, Respondents.chanroblesvirtua|awlibary

DISSENTING OPINION

ABAD, J.:

 cralaw

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.chanroblesvirtua|awlibary

Brief Antecedents

Petitioner Joselito R. Mendoza was proclaimed winner in the May 14, 2007 gubernatorial race in the Province of Bulacan.Respondent Roberto M. Pagdanganan who opposed him filed an election protest with the COMELEC questioning the election results in all the 5,066 precincts in the province due to massive electoral fraud that Mendoza allegedly committed.chanroblesvirtua|awlibary

On December 1, 2009 the COMELEC Second Division decided the election protest and proclaimed Pagdanganan as the duly elected Governor of Bulacan.Mendoza opposed Pagdanganans motion for execution of the decision before the Second Division and filed a motion for reconsideration of that decision with the COMELEC En Banc.chanroblesvirtua|awlibary

On February 8, 2010 the COMELEC En Banc denied Mendozas motion for reconsideration.Reacting to it, he filed an urgent motion to recall the February 8 resolution on the ground, among others, that the En Banc issued such resolution (a) without the concurrence of the majority of its members and (b) without conducting a rehearing under Section 6, Rule 18 of the COMELEC rules of procedure.Only three Commissioners voted to deny his motion for reconsideration.A commissioner dissented while three others took no part.chanroblesvirtua|awlibary

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 Mendoza filed with this Court the present petition, raising the same grounds which he cited in the urgent motion to recall that he earlier filed with the COMELEC En Banc

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 Divisions decision.This prompted Mendoza to file a supplement to his petition before this Court, bringing up the recent developments in the case.chanroblesvirtua|awlibary

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 Mendozas motion for reconsideration would effectively result in the abandonment or reversal of the Second Divisions decision against him.chanroblesvirtua|awlibary

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 Mendozas motion for reconsideration of the decision of the Second Division could not be had, the Divisions decision should be deemed affirmed.chanroblesvirtua|awlibary

But, adopting petitioner Mendozas position, the majority opinion penned by Justice Perezs submits that the result of a failure of vote in the En Banc should be to set aside the Second Divisions decision and dismiss Pagdanganans 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 Pagdanganans favor.On Mendozas motion for reconsideration filed with the En Banc, the latter voted twice with the same result: three votes for denying the motion for reconsideration, one dissenting vote for granting it, and three abstentions.The reasoning is that, since the necessary majority of four votes cannot be had, the election protest originally commenced in the COMELEC should be dismissed.chanroblesvirtua|awlibary

If the issue were to be decided based solely on Section 6, Rule 18 of the COMELEC rules of procedure, Justice Perezs 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.chanroblesvirtua|awlibary

The majority opinions theory that the Divisions 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.chanroblesvirtua|awlibary

Two.The COMELEC cannot pass a rule that, when the En Banc fails to muster the majority vote required for denying the losing partys motion for reconsideration, the decision of the Division shall be deemed vacated or reversed.chanroblesvirtua|awlibary

Such rule will alter the scope of the power of the En Banc.The latters 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.c�fa1c�fac�fal�.wSince the En Banc needs four votes to reconsider and set aside a Divisions 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

The resolution of the COMELEC enbanc being in harmony with both constitutional and statutory provisions, I vote to deny the petition.chanroblesvirtua|awlibary

ROBERTO A. ABAD

Associate Justice