EN BANC

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

JOSELITO R. MENDOZA, Petitioner, vs. COMMISSION ON ELECTIONS AND ROBERTO M. PAGDANGANAN, Respondents.

SEPARATE OPINION

CARPIO MORALES, J.:

I proffer my opinion on four issues indicated below as sub-headings in interrogative form.The ponencia of Justice Jose Perez glosses over the first and second questions, into which I opt to delve and to which I answer in the negative.I register my dissent on the third issue.As to the fourth issue, I concur in the finding that the Commission on Elections (Comelec) abdicated its positive duty.

Is petitioner guilty of forum shopping?

Forum shopping is defined in Santos v. Comelecc�fa1c�fac�fal�.w as an act of a party, against whom an adverse judgment or order has been rendered in one forum, of seeking and possibly securing a favorable opinion in another forum, other than by appeal or special civil action for certiorari; and may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition.c�fa2c�fac�fal�.w

Petitioner did not forum-shop.

A circumstance of forum-shopping presupposes a simultaneous or successive availment of two viable remedies, which could result in two conflicting opinions.Petitioners (1) Urgent Motion to Recall the Resolution promulgated on February 8, 2010 before the Comelec en banc (filed alongside the present petition), and (2) Urgent Motion to Declare Null & Void and Recall Latest En Banc Resolution Dated March 4, 2010 and Urgent Motion to Set Aside March 4, 2010 En Banc Resolution Granting Motion for Execution Pending Motion for Reconsideration before the Comelec en banc (filed alongside a Supplement to the present petition) are prohibited pleadings, for they are in the nature of a motion for reconsideration of an en banc ruling, resolution, order or decisionc�fa3c�fac�fal�.w which is one of the pleadings not allowed by the Comelec Rules of Procedure.

As prohibited pleadings, they do not deserve the attention of the Comelec as they face the certainty of outright dismissal and the vulnerability of being expunged.In fact, a prohibited pleading cannot be given any legal effect precisely because it is being prohibited.c�fa4c�fac�fal�.w

The Comelec cannot grant or entertain prohibited pleadings regardless of their merit.The evils of coming up with a conflicting opinion and congesting the dockets are thus absent.The Comelec cannot be considered another forum from which to shop since it is no longer offering any legal remedy or recourse to the parties.

Petitioner no longer waited for the resolution of the motions before filing the present petition, after perhaps realizing the futility of the prohibited pleadings that, moreover, do not toll the running of the reglementary period.c�fa5c�fac�fal�.wPetitioner may not thus be faulted for beating the deadline and resorting to the only remedy available provided under Rule 64 of the Rules of Court.

While petitioner did not faithfully comply with the rule on prohibited pleadings, the consequences of which he alone, by all means, should bear, his actuations cannot be likened to forum-shopping.

In line with the foregoing, I answer the next question in the negative.

Is the petition premature?

The petition was not prematurely filed.

Upon the promulgation by the Comelec en banc of the February 8, 2010 Resolution which was arrived at without a rehearing in spite of a deadlock,there was nothing else to be done in the ordinary course of law to ripen the petition.

By law, the Comelec en banc is not required to rectify its mistakes upon motion, precisely because of the rule prohibiting a motion for reconsideration of an en banc resolution.Neither are the parties expected to wait and see if the Comelec en banc would motu proprioc�fa6c�fac�fal�.w reconsider its resolution and realize the need for a hearing, for the clock is ticking in the meantime and the reglementary period would soon toll the bells of finality of judgment.Certainly, petitioner cannot risk preparing a petition at the eleventh hour when he is very certain that the Comelec would no longer correct itself.

In Juliano v. Commission on Elections,c�fa7c�fac�fal�.w the Court granted a petition similar to the present and underscored the necessity of the conduct of a rehearing in cases when the Comelec en banc was equally divided in opinion or when the necessary majority cannot be had.It held that the Comelec en banc acts with grave abuse of discretion when it fails to give a party the rehearing required by the Comelec Rules of Procedure.

At the time of filing of the present petition, the issues raised therein were already mature for adjudication.

The maturity of the issues, however, was immediately spoiled by mootness.The Comelec en banc eventually ordered on February 10, 2010 the conduct of a rehearing, which order contradicted its earlier pronouncement that its February 8, 2010 Resolution is immediately executory.The parties notification on February 12, 2010 of this Comelec Order of February 10, 2010 incidentally coincided with the present petitions filing on February 12, 2010.This development effectively forestalled an argument of petitioner in challenging the February 8, 2010 Resolution, and may have mooted an issue, as what happened in Marcoleta v. Commission on Electionsc�fa8c�fac�fal�.w where the Comelecs subsequent positive action for a rehearing frustrated the resolution of the issue, but it is not an argument for prematurity.

After rehearing and having failed to reach the necessary majority, the Comelec en banc, by Order of March 4, 2010, disposed of the motion for reconsideration in the same way as its February 8, 2010 Resolution.This development technically provided the basis for the filing of petitioners supplemental petition which assails said March 4, 2010 Order of the Comelec.As observed by the ponencia, the filing of the supplemental petition was proper.

What happens when the necessary majority cannot be reached by the Comelec en banc after a rehearing?

The parties cite Section 6, Rule 18 of the Comelec Rules of Procedure, reading:

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 dismissedif 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. (emphasis and underscoring supplied)

The bone of contention is the manner of disposition of a motion for reconsideration when in spite of rehearing, no decision is reached by the Comelec en banc which remains equally divided in opinion, or wherein the necessary majority still cannot be had.The rule states that the action or proceeding shall be dismissed if originally commenced in the Commission.

I respectfully differ from the ponencia.

There are cases which may be initiated at the Comelec en banc, the voting in which could also result to a stalemate.The Comelec sits en banc in cases specifically provided by the Rules, pre-proclamation cases upon a vote of a majority of its members, all other cases where a Division is not authorized to act,c�fa9c�fac�fal�.winter alia.These matters include election offense cases,c�fa10c�fac�fal�.w contempt proceedings,c�fa11c�fac�fal�.w and postponement or declaration of failure of elections and the calling for a special elections.c�fa12c�fac�fal�.wIn such cases, when the necessary majority in the Comelec en banc cannot be had even after a rehearing of the action, the effect is dismissal of the action.

In an election protest originally commenced in the Comelec and a decision is reachedc�fa13c�fac�fal�.w by the Division, it is, as the ponencia correctly posits, the banc that shall effectively complete the process,c�fa14c�fac�fal�.w which position hews well with Justice Presbitero Velasco, Jr.s view of one integrated process,c�fa15c�fac�fal�.w to which I also agree.A motion for reconsideration before the Comelec en banc is one such proceeding that is a part of the entire procedural mechanism of election cases.Ergo, when the necessary majority in the Comelec en banc cannot be had even after a rehearing, the effect is dismissal of the proceeding.The motion for reconsideration should be dismissed.

As defined by Black, the term proceeding may refer to a procedural step that is part of a larger action or special proceeding.c�fa16c�fac�fal�.wBlack defines process as a series of actions, motions or occurrences.c�fa17c�fac�fal�.w

The word proceeding could not have been used as an innocuous term.It was used to refer to matters requiring the resolution of the banc in cases originally commenced in the Comelec that pass through a two-tiered process, as differentiated from actions initiatedc�fa18c�fac�fal�.w and totally completed at the banc level.It is a universal rule of application that a construction of a statute is to be favored, and must be adopted if reasonably possible, which will give meaning to every word, clause, and sentence of the statute and operation and effect to every part and provision of it.

Following the position of the ponencia, it is observed that in such cases where a Comelec Division dismisses an election protest and the necessary majority is not reached after the rehearing of a motion for reconsideration, the Comelec en banc, in effect, affirms such decision by similarly dismissing the action.Under my submission, the result is the same but what is dismissed is the proceeding which is the motion for reconsideration.There should be no declaration of affirmance since, as the ponencia concedes, there is no conclusive result in the form of a majority vote.c�fa19c�fac�fal�.wThe Comelec en banc should dismiss the proceeding at hand but not the action, petition or case.

The glaring difference becomes more apparent when the Comelec Division grants an election protest like that in the present case.Since a majority vote was not attained after rehearing the Motion for Reconsideration, the ponencia states that the Comelec en banc should have dismissed the election protest itself or, in effect, vacated the decision of the Division.Again I submit that it is the Motion for Reconsideration that is the proceeding which should be dismissed.First, it is absurd for a deliberating body which arrived at no conclusive result in the form of a majority vote to do something about a matter on the table, much less to overturn it.Second, the resulting tyranny of the minority is unjust for, in such cases where the Comelec enbanc has a quorum of four, the protestee only needs to obtain the vote of just one Commissioner to frustrate the protestants victory that was handed down by three Commissioners.Third, the ponencia incorrectly denotes that a body which could not pronounce a decision can effectively pronounce one and even one contrary to that of a body that could reach a decision.Otherwise stated, it downplays the significance of the concurrence of a majority, which breathes life to any handiwork of the decision-making power of the Comelec.Certainly, that was not the purpose and principle envisioned by the Comelec Rules of Procedure.

Did the Comelec gravely abuse its discretion when it failed to credit petitioners claims?

The above discussions notwithstanding, I submit that on the merits of the case, the Comelec gravely abused its discretion amounting to lack or excess of jurisdiction.

When the handwritings on the ballots are the subject matter of the election contest, the best evidence would be the ballots themselves as the Comelec can examine or compare these handwritings even without the assistance from handwriting experts,c�fa20c�fac�fal�.w with due consideration to the presence of assisted voters, if any is reflected in the Minutes of Voting.c�fa21c�fac�fal�.wGeneral appearance or pictorial effect is not enough to warrant that two writings are by the same hand.The ballots cannot be invalidated on such ground if they display but a single consistent dissimilarity in any feature which is fundamental to the structure of the handwriting, and whose presence is not capable of reasonable explanation.An exegesis of the semblances or similarities and differences or variations in the master patterns governing letter design is thus imperative.I thus agree with Justice Antonio Carpios position that the Comelec abdicated its positive duty.

The Comelec failed to consider whether there is a type of consistent dissimilarity in a fundamental feature of the handwriting structure of the entries in the ballots.The Comelec did not rebut the presumption of validity of the ballots since it did not take the position that the similarities in the class and individual characteristics do not lean more towards accidental coincidence or that the divergences in class and individual characteristics are superficial.Neither did it point out that the presence of the alleged dissimilarities could be reasonably explained by or attributed to an attempt to disguise the handwriting after examining its fluency and rhythm which may normally vary from one ballot to another but should remain consistent within each ballot.