Republic of the Philippines
SUPREME COURT
Manila

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

LEONARDO-DE CASTRO, J.:

Before the Court is a Petition for Certiorari with an Urgent Prayer for the Issuance of a Temporary Restraining Order and/or a Status Quo Ante Order and Writ of Preliminary Injunction filed by Joselito R. Mendoza (petitioner) against the Commission on Elections (COMELEC) and Roberto M. Pagdanganan (respondent Pagdanganan), assailing the COMELECs Resolutionc�fa1c�fal�.w promulgated on February 8, 2010 in EPC NO. 2007-44, entitled Roberto M. Pagdanganan versus Joselito R. Mendoza (the questioned Resolution).chanroblesvirtua|awlibary

The antecedent facts are summarized below.chanroblesvirtua|awlibary

Petitioner and respondent Pagdanganan were rival candidates for the gubernatorial position in the Province of Bulacan during the May 14, 2007 elections.After the COMELEC count, petitioner Mendoza ranked first and bested respondent Pagdanganan with a winning margin of Fifteen Thousand Seven Hundred Thirty-Two (15,732) votes.Thus, petitioner was proclaimed as the duly elected Governor of the Province of Bulacan.chanroblesvirtua|awlibary

Respondent Pagdanganan filed an Election Protest with the COMELEC on June 1, 2007 impugning the results 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 province of Bulacan on the basis of massive electoral fraud allegedly committed during the elections to ensure the victory of petitioner.This election protest was raffled to the Second Division of the COMELEC and was docketed as EPC No. 2007-44.chanroblesvirtua|awlibary

On June 18, 2007, petitioner filed an Answer With Counter-Protestc�fa2c�fal�.wdenying the allegation of massive electoral fraud and claiming that he would have been credited with more votes had it not been for the electoral fraud allegedly committed by respondent Pagdanganan in nine municipalities.chanroblesvirtua|awlibary

Then on June 5, 2008, petitioner filed a Manifestation and Motion for Investigation of Substitution of Ballots with Fake/Spurious Ballotsc�fa3c�fal�.wdue to the alleged alarming number of fake/spurious ballots, which were substituted for the genuine ballots after the voting and conduct of election in the different precincts of the municipalities of Bulacan and were uncovered during the revision of ballots.chanroblesvirtua|awlibary

After the preliminary conference, the COMELEC ordered a revision of the ballots involving the protested and counter-protested precincts, and this was conducted and supervised by the COMELEC at its premises.After their respective formal offers of exhibits were admitted, the parties submitted their respective memoranda on February 20, 2009.The case was then submitted for resolution.chanroblesvirtua|awlibary

On March 2, 2009, the COMELEC transferred the ballot boxes containing the ballots, election returns, and other pertinent election documents of both protested and unprotested precincts of Bulacan to the Senate Electoral Tribunal (SET) pursuant to SETResolution No. 07-54 in connection with the protest filed by Aquilino Pimentel III against Juan Miguel Zubiri.Petitioner thereafter filed a Motion for Suspension of Further Proceedings.The COMELEC issued an Orderc�fa4c�fac�fal�.wdenying petitioners motion for lack of merit.chanroblesvirtua|awlibary

On July 8, 2009, petitioner went to this Court and filed a Petition for Prohibition & Certiorari with Urgent Prayer for the Issuance of a Temporary Restraining Order and Writ of Preliminary Injunction,c�fa5c�fac�fal�.w docketed as G.R. No. 188308, to prohibit the COMELEC from proceeding with the appreciation by its personnel of ballots in the custody of the SET.On July 14, 2009, this Court issued a Status Quo Orderc�fa6c�fac�fal�.w in G.R. No. 188308 enjoining the COMELEC Second Division from further proceeding with the revision of the ballots until further notice from the Court.This Order was lifted subsequently and the petition was dismissed by the Court En Banc in its Decision dated October 15, 2009, wherein the Court ruled that, on the basis of the standards set by Section 4 of the COMELEC Rules of Procedure (the COMELEC Rules) and of the Constitution itself in the handling of election cases, the COMELEC's consideration of the provincial election contest, specifically its appreciation of the contested ballots at the SET premises, while the same ballots were also under consideration by the SET for another election contest,was a valid exercise of discretion.The Court further ruled that such COMELEC action was a suitable and reasonable process within the exercise of its jurisdiction over provincial election contests, aimed at expediting the disposition of [the] case, and with no adverse, prejudicial or discriminatory effects on the parties to the contest that would render the rule unreasonable.7c�fac�fal�.w

The COMELEC Second Division, as a result of the revision proceedings, proclaimed respondent Pagdanganan as the duly elected Governor of the Province of Bulacan in a Resolutionc�fa8c�fac�fal�.wdated December 1, 2009 in EPC No. 2007-44, the dispositive portion of which reads:

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 Province of Bulacan having obtained a total of Three Hundred Forty-Two Thousand Two Hundred Ninety-Five (342,295) votes, with a winning margin of Four Thousand Three Hundred Twenty-One (4,321) votes.chanroblesvirtua|awlibary

Protestee is ordered to IMMEDIATELY vacate the Office of the Provincial Governor of Bulacan; cease and desist from discharging the functions thereof; and peacefully turn-over the said office to Protestant Pagdanganan.chanroblesvirtua|awlibary

Let the Department of Interior and Local Government implement this resolution.c�fa9c�fac�fal�.w

Petitioner filed an Opposition to the Motion for Executionc�fa10c�fac�fal�.w with the COMELEC Second Division on December 7, 2009 and a Motion for Reconsiderationc�fa11c�fac�fal�.w with the COMELEC En Banc while respondent Pagdanganan filed a Motion for Immediate Execution of Judgment Pending Motion for Reconsideration.c�fa12c�fac�fal�.w

After deliberations on the Motion for Reconsideration in EPC No. 2007-44, the COMELEC En Banc voted as follows: Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph voted to DENY the motion for reconsideration for lack of meritc�fa13c�fac�fal�.w; Commissioner Rene V. SarmientoDISSENTED and wrote a separate opinionc�fa14c�fac�fal�.w; while three Commissioners TOOK NO PART, namely, Chairman Jose A. R. Melo, Commissioner Armando C. Velasco, and Commissioner Gregorio Y. Larrazabal.

Thereafter, the COMELEC En Banc issued the questioned Resolution dated February 8, 2010, wherein it held:

WHEREFORE, in view of the foregoing, the Commission En BancDENIES 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.chanroblesvirtua|awlibary

Considering the proximity of the end of the term of the office involved, this Resolution is declared immediately executory.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.c�fa15c�fac�fal�.w

On February 11, 2010, petitioner filed an Urgent Motion to Recall the Resolution Promulgated on February 8, 2010 before the COMELEC and raised as grounds, among others, that: (1) the resolution was issued without the concurrence of the majority of the members of the Commission as mandated by Section 5, Rule 3 of the COMELEC Rules, and without conducting a rehearing under Section 6, Rule 18 of the same rule; (2) no notice was issued for the promulgation of the resolution as mandated by Section 5, Rule 18 of the said rule; and (3) the resolution could not be immediately executory, as the appealed case was an ordinary action, which can only become final and executory after 30 days from its promulgation under Section 13, Rule 18 of the adverted rule.Petitioner argued that the desired majority was not obtained in the voting of the COMELEC En Banc, considering that only three Commissioners voted to deny the Motion for Reconsideration, three Commissioners took no part, and one Commissioner dissented from the Resolution.chanroblesvirtua|awlibary

On February 12, 2010, petitioner filed before this Court the instant petition assailing the COMELEC Resolution dated February 8, 2010; raising the same grounds that he had cited in his Urgent Motion to Recall the Resolution Promulgated on February 8, 2010;and, in addition, disputing the appreciation and result of the revision of the ballots, which resulted in respondent Pagdanganans proclamation as the duly elected Governor of the Province of Bulacan.chanroblesvirtua|awlibary

Meanwhile, on February 10, 2010, the COMELEC En Banc issued an Orderc�fa16c�fal�.w for the rehearing of the protest, stating as follows:

Considering that there was no majority vote of the members obtained in the Resolution of the Commission En Bancpromulgated on February 8, 2010, theCommission hereby orders there-hearing of the above-entitled case on Monday, February 15, 2010 at 2:00 oclock in the afternoon.chanroblesvirtua|awlibary

The Clerk of the Commission is directed to notify all parties and counsels concerned. (Emphases added.)

During the rehearing on February 15, 2010, the parties agreed to submit the matter for resolution by the COMELEC En Banc upon the submission of their respective memoranda, without further argument. After deliberation, the Commissioners voted in the same way:three concurred, three took no part, and one dissented from the Resolution of the COMELEC Second Division dated December 1, 2009.chanroblesvirtua|awlibary

Respondent Pagdanganan filed his Comment (To Petition for Certiorari) on February 22, 2010, while the COMELEC, represented by the Office of the Solicitor General, filed its Comment on March 1, 2010 before this Court.Both respondents allege that the instant petition was prematurely filed in view of the scheduled rehearing of the case on February 15, 2010, and that petitioner is guilty of forum shopping for seeking relief from the questioned Resolution simultaneously before the COMELEC and this Court.chanroblesvirtua|awlibary

Petitioner, in his Reply to Respondent Pagdanganans Commentdated March 2, 2010, contends that he fully disclosed to this Court the pendency before the COMELEC of his Urgent Motion to Recall the Resolution Promulgated on February 8, 2010; and explains that he was just compelled to file the instant petition, since the questioned resolution was already accompanied by a writ of execution directing the Provincial Election Supervisor of Bulacan and the Department of Interior and Local Government (DILG) Provincial Operations Officer to implement it despite the fact that the said ruling had not yet become final and executory under Section 13, Rule 18 of the COMELEC Rules.Petitioner further claims that the COMELECs order for the rehearing of the case was not actually and legitimately served on his counsel, as a copy of the said order for rehearing was initially handed to a revisor while he was at the premises of the COMELEC; and a copy of the said order was received only in the late hours of the morning of February 12, 2010 when the instant petition was already on its way to filing.chanroblesvirtua|awlibary

In an Orderc�fa17c�fac�fal�.w dated March 4, 2010, the COMELEC En Banc denied protestees Motion for Reconsideration and granted protestants Motion for Immediate Execution.It also directed the Clerk of the Commission to issue a Writ of Execution directing the Provincial Election Supervisor of Bulacan, in coordination with the DILG Provincial Operations Officer of Bulacan, to implement the Resolution of the Commission (Second Division) dated December 1, 2009; and ordered petitioner to cease and desist from performing the functions of the Governor of the Province of Bulacan and to vacate said office in favor of respondent Pagdanganan.Pursuant to this, on March 5, 2010, the COMELEC Electoral Contests Adjudication Department (ECAD) issued a Writ of Execution,c�fa18c�fac�fal�.w while the COMELEC En Banc issued an Orderc�fa19c�fac�fal�.w directing the ECAD personnel to deliver by personal service copies of the March 4, 2010 Order of the COMELEC En Banc and the corresponding March 5, 2010 Writ of Execution to the parties.Petitioner filed on March 5, 2010 an Urgent Motion to Declare Null & Void and Recall Latest En Banc Resolution Dated March 4, 2010c�fa20c�fac�fal�.w and an Urgent Motion to Set Aside March 4, 2010 En Banc Resolution Granting Protestants Motion for Execution Pending Motion for Reconsiderationc�fa21c�fac�fal�.w with the COMELEC En Banc.chanroblesvirtua|awlibary

On March 8, 2010, petitionerfiled with the Court a Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a Temporary Restraining Order or a Status Quo Orderc�fa22c�fac�fal�.w arguing that: (1) the election protest should have been dismissed after no majority vote was obtained by respondent Pagdanganan after rehearing; (2) the Order dated March 4, 2010 and the writ of execution dated March 5, 2010 were null and void, as they pertained to a wrong Resolution of the COMELEC Second Division; (3) no valid decision could have been rendered by the COMELEC En Banc without the originals of the ballots having been appreciated; (4) public respondent ignored the recent ruling of the Court in Corral v. Commission on Elections,c�fa23c�fal�.w which made the Resolutions dated December 1, 2009 and February 8, 2010 null and void; and (5) all of the above are clear revelations that there is something terribly wrong in the adjudication of the above case both on the Division and on the En Banc levels - which the Honorable Court should not allow to bear any further illicit consequences through the immediate issuance of a temporary restraining order/status quoante order.chanroblesvirtua|awlibary

Respondent Pagdanganan filed a Most Respectful Urgent Manifestation with the Court citing petitioners blatant forum shopping in pursuing simultaneous reliefs both before the Court and the COMELEC En Banc.chanroblesvirtua|awlibary

In a Resolution dated March 9, 2010, this Court resolved to grant petitioners prayer for the issuance of a status quo ante order.The pertinent portion of said resolution reads as follows:

Acting on Petitioners prayer for the urgent issuance of a temporary restraining order and/or status quo ante order in his Petition for Certiorari and Supplement to the Petition, the Court FURTHER RESOLVES to issue a STATUS QUO ANTE ORDER, for the maintenance of the situation prevailing at the time of the filing of the instant Petition for a period of seven (7) days.Specifically, respondents and all other persons acting on their authority are enjoined from enforcing or executing the following issuances in EPC Case No. 2007-44: (1) Resolution dated December 1, 2009 issued by the COMELEC Second Division; and (2) Resolution dated February 8, 2010, Order dated March 4, 2010, and Writ of Execution dated March 5, 2010 issued by the COMELEC En Banc, which ordered petitioner to cease and desist from performing the functions of the Governor of the Province of Bulacan and to vacate said office in favor of respondent [Pagdanganan].This STATUS QUO ANTE ORDER shall be effective immediately and continuing until March 16, 2010, unless otherwise ordered by this Court.chanroblesvirtua|awlibary

On March 16, 2010, this Court issued another Resolution extending the status quo order for another seven (7) days or until March 23, 2010 unless otherwise ordered by this Court.chanroblesvirtua|awlibary

Respondent Pagdanganan filed on March 10, 2010 a Manifestation and Comment to Petitioners Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a Temporary Restraining Order or a Status Quo Order.Petitioner filed a Manifestation with Motion to Appreciate Ballots Invalidated as Written by One Person and Marked Ballots on March 12, 2010.chanroblesvirtua|awlibary

The issues before the Court are:

1.        cralawWHETHER PETITIONER IS GUILTY OF FORUM SHOPPING;cralaw

2.        cralawWHETHER THE INSTANT PETITION IS PREMATURE;cralaw

3.        cralawWHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT ISSUED THE QUESTIONED RESOLUTION WITHOUT THE CONCURRENCE OF THE MAJORITY OF THE MEMBERS OF THE COMMISSION AND WITHOUT CONDUCTING A REHEARING OF THE CASE;cralaw

4.        cralawWHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT FAILED TO CREDIT THE CLAIMS OF THE PETITIONER;cralaw

4.1   cralawWHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT INVALIDATED 9,160 BALLOTS OF THE PETITIONER AS WRITTEN BY ONE PERSON IN PAIRS OR IN GROUP; and

4.2   cralawWHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT INVALIDATED THOUSANDS OF VALID BALLOTS OF THE PETITIONER AS SPURIOUS, WRITTEN BY TWO OR MORE PERSONS AND AS MARKED BALLOTS WITH NO FACTUAL AND LEGAL BASIS.c�fa24c�fac�fal�.w

DISCUSSION

1.WHETHER PETITIONER IS GUILTY OF FORUM SHOPPING

Respondent Pagdanganan and the COMELEC both claim that petitioners act of filing on February 11, 2010 with the COMELEC a Motion to Recall the Resolution Promulgated on February 8, 2010 and praying that the questioned Resolution be immediately recalled by the latter, and thereafter filing on the following day, i.e., on February 12, 2010, with this Court the instant Petition for Certiorari with Prayer for a Temporary Restraining Order and/or Status Quo Orderasking, among others, that the questioned Resolution be set aside, undeniably constitute forum shopping;c�fa25c�fac�fal�.wthat at the time of the filing of the case at bar, petitioner did not disclose his act of filing a Motion to Recall with the COMELEC; and that petitioner sought to have this procedural lapse cured through his Manifestation and Motion to Admit Further Documents for Compliance and Additional Annexes to the Petition filed on February 15, 2010, with a modified Verification and Certification of Non-Forum Shopping wherein he had inserted a clause saying, t]hat other than the Motion to Recall the Resolution Promulgated on February 8, 2010 which I filed before the Commission on Elections En Banc on February 11, 2010, I have not commenced any other action or proceeding involving the same issues x x x.c�fa26c�fac�fal�.w

Petitioners actions do constitute forum shopping, as this term was defined in Santos v. Commission on Elections,c�fa27c�fac�fal�.wcited by the COMELEC in its Comment, the pertinent portions of which read as follows:

Santos is Guilty of Forum-Shopping

Forum shopping is 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. It 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.

x x x x

Santos stated in his petition before this Court that on 9 July 2004, he filed a motion for reconsideration of the COMELEC First Division's Resolution. However, he did not disclose that at the time of the filing of his petition, his motion for reconsideration was still pending before the COMELEC En Banc. Santos did not also bother to inform the Court of the denial of his motion for reconsideration by the COMELEC En Banc. Had Asistio not called this Court's attention, we would have ruled on whether the COMELEC First Division committed grave abuse of discretion in dismissing SPC No. 04-233, which is one of the issues raised by Santos in this petition. This act of Santos alone constitutes a ground for this Court's summary dismissal of his petition.(Emphasis added.)

In the case at bar, petitioners claim that he was compelled to seek immediate redress from this Court since the questioned Resolution had already incorporated a Writ of Execution does not justify his actions, as this does not take away the fact that he had a pending Motion to Recall with the COMELEC En Banc when he filed the instant petition questioning the Resolution issued by the COMELEC En Banc on February 8, 2010. This simultaneous filing of two actions in different fora involving the same Resolution is an act of malpractice precisely prohibited by the rules against forum shopping, since, like in this instance, it adds to the congestion of the dockets of the Court, trifles with the Courts rules, and hampers the administration of justice.chanroblesvirtua|awlibary

On this ground alone, this petition should be dismissed, however, considering the public interest involved in this case, specifically in the province of Bulacan where the people now eagerly await the Courts pronouncement as to who is their duly-elected governor, I have opted to discuss a few more issues below to address the concerns raised by both parties.chanroblesvirtua|awlibary

2.WHETHER THE INSTANT PETITION IS PREMATURE

It is clear from the events immediately succeeding the filing of this petition that it was, as correctly averred by respondents, premature.The parties do not dispute the fact that this petition was filed during the pendency of the Urgent Motion to Recall the Resolution Promulgated on February 8, 2010 filed on February 11, 2010 by petitioner and the scheduled re-hearing of the case on February 15, 2010 before the COMELEC.Respondent COMELEC aptly pointed out that there was nothing to judicially pass upon at this time considering that, when the instant petition was filed, the COMELEC had yet to make a final ruling on the protest of respondent Pagdanganan.chanroblesvirtua|awlibary

In Ambil, Jr. v. Commission on Elections,c�fa28c�fal�.w the Court held:

In a long line of cases, this Court has held consistently that before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him.Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the courts judicial power can be sought.The premature invocation of courts intervention is fatal to ones cause of action.chanroblesvirtua|awlibary

Further proof that this petition is premature is the fact that the rehearing conducted on February 15, 2010 rendered moot and academic the primary issues raised by petitioner regarding the questioned Resolution, specifically, whether or not [the COMELEC] gravely abused its discretion tantamount to lack of or in excess of jurisdiction when it issued the assailed resolution without the concurrence of the majority of the members of the Commission and without conducting a rehearing of the case, as well as without issuing a notice of promulgation of the said assailed Division Resolution, and before it had attained finality.c�fa29c�fac�fal�.wThe COMELEC Rules require that a rehearing be conducted when the necessary majority is not reached in the En Banc level. This was already complied with on February 10, 2010 when the COMELEC issued an Order scheduling a rehearing of the case, and fulfilled when such hearing actually took place on February 15, 2010, after which the COMELEC issued an Order dated March 4, 2010.chanroblesvirtua|awlibary

Petitioners act of filing a Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a Temporary Restraining Order or a Status Quo Orderon March 8, 2010 that dealt with the COMELEC En Bancs Order dated March 4, 2010, that in effect amends the instant petition to include a new subject matter, i.e., the Order dated March 4, 2010, and new issues as mentioned above, should not be allowed to take the place of a proper petition, otherwise, we would merely be condoning petitioners acts of forum shopping, premature filing, and his overall tendency to carelessly trifle with our rules to suit his needs.What petitioner should have done after the rehearing was to file a new petition before this Court questioning the Order dated March 4, 2010, and not to merely amend his petition by filing a Supplement, as such Order already raised new issues, e.g., the alleged lack of the necessary majority upon rehearing, the alleged erroneous dispositive portion of the Order, and other matters not anymore covered by the original petition.chanroblesvirtua|awlibary

Be that as it may, if we are to temporarily set aside our technical rules in the interest of justice, and we take a look into petitioners arguments in his Supplement to the Petition against the Order dated March 4, 2010, we would still arrive at the same conclusion that the petition should be dismissed.chanroblesvirtua|awlibary

As a result of the rehearing, petitioner raises a new argument before this Court, that the Order of the COMELEC En Banc dated March 4, 2010 referred to a wrong Resolution.The said Order provides: the Second Divisions Resolution, dated December 1, 2009 denying protestees Motion for Reconsideration and granting protestants Motion for Immediate Execution is hereby affirmed.Petitioner points out that the December 1, 2009 Resolution of the COMELEC Second Division neither denied petitioners Motion for Reconsideration nor granted respondent Pagdanganans Motion for Immediate Execution.I agree to the extent that the Order of March 4, 2010 should have referred to the February 8, 2010 Resolution of the COMELEC En Banc.However, the disposition of the Motion for Reconsideration in the March 4, 2010 Order, even with such oversight, is the same, which is to affirm the Denial of protestees motion for reconsideration and the grant of protestants Motion for Immediate Execution.chanroblesvirtua|awlibary

3. WHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED RESOLUTION WITHOUT THE CONCURRENCE OF THE MAJORITY OF THE MEMBERS OF THE COMMISSION AND WITHOUT CONDUCTING A REHEARING OF THE CASE

Petitioner argues that the questioned Resolution of February 8, 2010 was issued without the concurrence of the majority of the members of the COMELEC as mandated by Rule 3, Section 5 of the COMELEC Rules and without conducting a rehearing under Rule 18, Section 6 thereof.According to petitioner, since only three Commissioners concurred with the assailed Resolution, the desired majority of four concurring members for the pronouncement of a resolution was not attained, and a rehearing should have been conducted by the COMELEC En Banc.

After the rehearing, the same number of votes were cast at the COMELEC En Banc.The Chairman and two (2) Commissioners inhibited themselves from taking part in the case; three (3) Commissioners voted to deny the protestees Motion for Reconsideration and to grant protestants Motion for Immediate Execution; and one (1) Commissioner dissented.chanroblesvirtua|awlibary

The COMELEC Rules provide the instances when a Commissioner may be disqualified from voting or may voluntarily inhibit himself from sitting in a case, to wit:

RULE 4

Disqualification and Inhibition

 cralaw

SECTION 1. Disqualification or Inhibition of Members. (a) No Member shall sit in any case in which he or his spouse or child is related to any party within the sixth civil degree or consanguinity or affinity, or to the counsel of any of the parties within the fourth civil degree of consanguinity or affinity, or in which he has publicly expressed prejudgment as may be shown by convincing proof, or in which the subject thereof is a decision promulgated by him while previously serving as presiding judge of an inferior court, without the written consent of all the parties, signed by them and entered in the records of the case; Provided, that no Member shall be the "ponente" of an en banc decision/resolution on a motion to reconsider a decision/resolution written by him in a Division.chanroblesvirtua|awlibary

(b) If it be claimed that a Member is disqualified from sitting as above provided, the party raising the issue may, in writing, file his objection with the Commission, stating the grounds therefor. The member concerned shall either continue to participate in the hearing or withdraw therefrom, in accordance with his determination of the question of his disqualification. His decision thereon shall forthwith be made in writing and filed with the Commission for proper notation and with the records of the case. No appeal or stay shall be allowed from, or by reason of, his decision in favor of his own competency until after final judgment in the case.chanroblesvirtua|awlibary

(c) A Member may, in the exercise of his sound discretion, inhibit himself from sitting in a case for just or valid reasons other than those mentioned above. (Emphasis ours.)

The three Commissioners who did not take partwhen the COMELEC En Banc deliberated on petitioners Motion for Reconsideration in EPC No. 2007-44 gave their respective reasons for their inhibition.Chairman Jose A. R. Melo cited his relationship with the parties and their respective counsel; Commissioner Armando C. Velasco stated in his Explanationc�fa30c�fal�.w datedFebruary 8, 2010 that he could not take part in the deliberation because a proper re-examination of the original ballots subject of the case was not feasible at that time, considering that the same were under the custody of the Senate Electoral Tribunal (SET); while Commissioner Gregorio Y. Larrazabal wrote in his Explanationc�fa31c�fal�.w likewise dated February 8, 2010, that from February 2004 to January 2008, he was the Provincial Election Supervisor (PES) IV in the Province of Bulacan and had related to the parties in such capacity.Furthermore, he had served as the PES during the 2007 elections, the results of which were being questioned before the COMELEC, and he concluded that considering the foregoing, his moral and ethical beliefs had constrained him from participating so as to secure the peoples faith and confidence in the COMELECs impartiality and fairness.c�fa32c�fac�fal�.w

It appears that the inhibition by the three Commissioners was proper and in accordance with the COMELEC Rules.The said Commissioners used their sound discretion, which they were allowed to do under the present COMELEC rules.Notwithstanding their voluntary inhibition, there still was a quorum when the COMELEC En Banc deliberated on petitioners Motion for Reconsideration with the participation of the remaining four out of the seven Commissioners.chanroblesvirtua|awlibary

Moreover, with regard to the February 8, 2010 Resolution, the issue of lack of necessary majority had become moot because the COMELEC En Banc subsequently issued an Order for the rehearing of petitioners Motion for Reconsideration and respondent Pagdanganans Motion for Execution of the Resolution issued by its Second Division, as required by the COMELEC Rules.The rehearing was actually conducted on February 15, 2010.After the matter was submitted for resolution, the COMELEC En Banc issued an Orderc�fa33c�fac�fal�.w dated March 4, 2010, stating as follows:

There is no issue on the presence of a quorum when the foregoing voting was conducted, as the seven (7) members of the Commission were present when the case was deliberated on, and they announced their respective votes.Nevertheless, the voting on the twin motions as indicated above wherein three (3) commissioners voted to deny protestees Motion for Reconsideration and grant the protestants Motion for Immediate Execution Pending Motion for Reconsideration, and one (1) commissioner dissenting, clearly shows that at least four (4) commissioners participated, and, hence, there was a quorum.The case of Estrella vs. COMELEC is applicable.chanroblesvirtua|awlibary

In Estrella the Supreme Court laid down the rule that the COMELEC en banc shall decide a case on matter[s] brought before it by a majority vote of all its members, and NOT majority of the members who deliberated and voted thereon.In the present case, the majority of four (votes) was not attained as only three (3) commissioners concurred in the aforesaid Resolution denying protestees Motion for Reconsideration and granting protestants Motion for Immediate Execution pending the protestees Motion for Reconsideration.Hence, the subject Resolution may not yet be promulgated.It is by virtue of this impasse that the Commission en banc scheduled a rehearing of the case as mandated by the Rules.At the rehearing conducted on February 15, 2010, the parties agreed to submit the matter for resolution by the Commission en banc upon the submission of their respective memoranda, without further argument.chanroblesvirtua|awlibary

The parties having submitted their respective memoranda, the matter was deliberated on by the Commission en banc and the seven (7) members maintained their respective stands (3 votes concurring-1 vote dissenting-3 stating no part) on the Resolution of the Second Division dated December 1, [2009].Hence, pursuant to Section 6, Rule 18, COMELEC Rules of Procedure, the latter is deemed affirmed.chanroblesvirtua|awlibary

WHEREFORE, premises considered, and, applying the provision of Rule 18, Section 6 of the COMELEC Rules of Procedure, the Second Divisions Resolution, dated December 1, 2009, denying protestees Motion for Reconsideration and granting protestants Motion for Immediate Execution is herby AFFIRMED.

ACCORDINGLY, the Clerk of the Commission, ECAD, is hereby ordered to forthwith ISSUE a WRIT OF EXECUTION directing the Provincial Election Supervisor of Bulacan, in coordination with the DILG Provincial Operations Officer of Bulacan, to implement the Resolution of the Commission (Second Division) dated December 1, 2009, and this Order of the Commission by ordering JOSELITO R. MENDOZA to CEASE AND DESIST from performing the functions of the Governor of the Province of Bulacan and to VACATE said office in favor of ROBERTO M. PAGDANGANAN.

Let a copy of this Order 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.34c�fac�fal�.w

What is left for determination regarding this issue is the validity of the Order dated March 4, 2010, because a majority of four votes was still not reached even after rehearing.chanroblesvirtua|awlibary

To do this, it is necessary to look into the COMELEC Rules, as amended, wherein the manner by which the COMELEC shall transact business is spelled out, and we quote the relevant portions below:

RULE 3

How the Commission Transacts Business

x x x x

SECTION 3. The Commission Sitting in Divisions. The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special proceedings except in accreditation of citizens arms of the Commission.chanroblesvirtua|awlibary

RULE 18

Decisions

x x x x

SECTION 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. (Emphasis ours.)

The lone dissenter in both the questioned Resolution and the March 4, 2010 Order, Commissioner Rene V. Sarmiento, wrote that Rule 18, Section 6 of the COMELEC Rules should be read to mean that in the event that even after a rehearing there is still an impasse as regards the opinion of the Commission En Banc, two different remedies are recognized; first, the case shall be dismissed if it was originally commenced in the Commission; and second, in appealed cases, the judgment or order appealed from shall be affirmed.c�fa35c�fac�fal�.wCommissioner Sarmiento opined that an election protest case is originally commenced in the Commission En Banc and should therefore be dismissed if the majority of four votes is not obtained.Adverting to Section 2(2), Article IX(C) of the Constitution, he ratiocinated as follows:

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.chanroblesvirtua|awlibary

x x x x

In the case at bar, considering that the contested position is provincial governor, undoubtedly, exclusive original jurisdiction lies with the Commission on Elections.Correlatively, the protest should be and, indeed, was filed before the Commission at the first instance.It goes without saying therefore that the present case falls under the category originally commenced in the Commission.

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 Divisions 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.chanroblesvirtua|awlibary

Having duly determined that this case falls under the category originally commenced, it is mandated therefore that the election protest filed by protestant Roberto Pagdanganan be dismissed.c�fa36c�fac�fal�.w

Similarly, petitioner, in his Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a Temporary Restraining Order or a Status Quo Order, avers that the election protest should have been dismissed after no majority vote was obtained after rehearing, citing the above discussion of Commissioner Sarmiento in his dissent.chanroblesvirtua|awlibary

I do not agree.The COMELEC Rules should be interpreted in harmony with the Constitution, to give meaning to, and fulfill the purpose of, its framers.chanroblesvirtua|awlibary

The COMELEC is a constitutionally-created body that is primarily an administrative agency, which also possesses quasi-judicial and quasi-legislative functions.Article IX(A) of the 1987 Constitution contains the provisions common to all Constitutional Commissions, and Sections 1 and 7 thereof read:

SECTION 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.chanroblesvirtua|awlibary

x x x x

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 ours.)

Specifically, Article IX(C) of the Constitution covers the COMELEC, Section 3 of 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.(Emphases supplied.)

It is clear from the above that the framers of the Constitution intended the COMELEC to be an independent body.It appears that a division of the COMELEC is vested with constitutional authority to hear and decide election cases subject to the filing of a motion for reconsideration with the COMELEC En Banc.Thus, before a case is elevated to the COMELEC En Banc, there exists a decision of a division of the COMELEC, which it has rendered in accordance with its constitutionally vested jurisdiction to hear and decide election cases.chanroblesvirtua|awlibary

Furthermore, under the COMELEC Rules, a COMELEC division can validly decide election cases upon the concurrence of at least two Members.Rule 3, Section 5 provides:

SECTION 5. Quorum Votes Required.chanroblesvirtua|awlibary

(a)   cralawWhen 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 or resolution.chanroblesvirtua|awlibary

(b)  cralawWhen sitting in Division, two (2) Members of a Division shall constitute a quorum to transact business. The concurrence of at least two (2) Members of a Division shall be necessary to reach a decision, resolution, order or ruling. If this required number is not obtained, the case shall be automatically elevated to the Commission En Banc for decision or resolution.

(c)   cralawAny motion to reconsider a decision, resolution, or order of 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.chanroblesvirtua|awlibary

It appears that this Rule contemplates two distinct situations when a case originally heard before a Division reaches the COMELEC En Banc.Under paragraph (b), when the required number of two (2) Members is not obtained in the Division, the case shall be automatically elevated to the COMELEC En Banc, and in that situation, what is before the latter is the original election protest.On the other hand, under paragraph (c), when the required number is in fact obtained and a decision, resolution, order, or ruling is duly reached by the Division, the motion for reconsideration of such decision, resolution, order, or ruling shall be resolved by the COMELEC En Banc, and NOT the original election protest.chanroblesvirtua|awlibary

Applying Section 6, Rule 18,quoted above, the effect of the lack of the necessary majority of four (4) votes in the COMELEC En Banc, which results in the inability of the COMELEC En Banc to reach a decision either to grant or deny the protest or a motion for reconsideration, is as follows: (i) the original election protest is dismissed, in cases falling under paragraph (b); while (ii) the decision of the division sought to be reconsidered must be deemed affirmed, in cases falling under paragraph (c).chanroblesvirtua|awlibary

Furthermore, even if we consider the proceeding before the En Banc as a continuation of the election protest heard and decided by the division, the motion for reconsideration will be but an incident of the original election protest.Utilizing the provisions of the COMELEC Rules (Sec. 6, Rule 18) cited by Commissioner Sarmiento, the Motion for Reconsideration, not being an appeal but only an incidental motion, should be denied.chanroblesvirtua|awlibary

To construe Section 6, Rule 18 as providing for the dismissal of the original action that was decided upon by a division, as suggested by petitioner as well as Commissioner Sarmiento, would make the rule objectionable on constitutional grounds because, as discussed above, the Constitution gives the COMELEC divisions the jurisdiction to hear and decide election cases; and the COMELEC En Banc the authority to hear and resolve motions for reconsideration.To adopt petitioners as well as Commissioner Sarmientos interpretation of the COMELEC Rules would render nugatory said Constitutional mandate vesting the said jurisdiction on a division of the COMELEC.In other words, the COMELEC Rules as so interpreted would be vulnerable to objection on the ground of unconstitutionality.chanroblesvirtua|awlibary

Therefore, construing Section 6, Rule 18 in relation to Section 5(b) and (c) of the same COMELEC Rules, in harmony with the pertinent provisions of the Constitution, the rule providing for dismissal of the original protest action upon failure to reach the necessary majority before the COMELEC En Banc should only apply in a case where there was NO decision reached by the Division, because in such situation, the COMELEC En Banc would be acting not on the motion for reconsideration but on the original election protest.But if the COMELEC En Banc acts on a motion for reconsideration of a decision or resolution of a Division, then the failure to reach the necessary majority of four should result to the DENIAL of the motion for reconsideration.Otherwise, the motion for reconsideration would be accorded greater weight than the decision rendered by the Division, which was arrived at in the exercise of its constitutionally vested jurisdiction over election protests.chanroblesvirtua|awlibary

As it stands, when the subject election protest was elevated through a Motion for Reconsideration to the COMELEC En Banc, the decision of all three Members of the Second Division could have only been set aside by the majority of ALL Members of the COMELEC En Banc, meaning four out of seven votes.I agree with petitioner as well as Commissioner Sarmiento that under the Rules and Estrella v. COMELEC,c�fa37c�fac�fal�.w the necessary majority was not reached in order to decide on the Motion for Reconsideration.However, since no decision was reached by the COMELEC En Banc on the Motion for Reconsideration, what remains is the decision of the Second Division, which was validly rendered in consonance with the provisions of the Constitution and the COMELEC Rules.The protestant, who was proclaimed the winner and who already took his oath subsequent to such proclamation, cannot be removed by protestees failure to obtain the necessary votes from the COMELEC En Banc to sustain his Motion for Reconsideration.chanroblesvirtua|awlibary

As regards petitioners averment that the questioned Resolution dated February 8, 2010, as well as the Resolution dated December 1, 2009 of the COMELEC Second Division, was issued when the original ballots subject of the election protest were still in the custody of the SET, I see no reason to take this matter up again, as this Court had already passed upon this with finality in G.R. No. 188308.c�fa38c�fac�fal�.wI quote relevant portions of the Courts Decision in said case, which is clear and requires no further explanation:

Allegedly alarmed by information on COMELEC action on the provincial election contest within the SET premises without notice to him and without his participation, the petitioner's counsel wrote the SET Secretary, Atty. Irene Guevarra, a letter dated June 10, 2009 to confirm the veracity of the reported conduct of proceedings. The SET Secretary responded on June 17, 2009 as follows:

. . . please be informed that the conduct of proceedings in COMELEC EPC No. 2007-44 (Pagdanganan vs. Mendoza) within the Tribunal Premises was authorized by then Acting Chairman of the Tribunal, Justice Antonio T. Carpio, upon formal request of the Office of Commissioner Lucenito N. Tagle. ED

Basis of such grant is Section 3, Comelec Resolution No. 2812 dated 17 October 1995, stating that "(t)he Tribunals, the Commission and the Courts shall coordinate and make arrangement with each other so as not to delay or interrupt the revision of ballots being conducted. The synchronization of revision of ballots shall be such that the expeditious disposition of the respective protest case shall be the primary concern". While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of other proceedings in local election protest cases within its premises as may be requested. x x x.chanroblesvirtua|awlibary

x x x x

The petition is anchored on the alleged conduct of proceedings in the election protest following the completed revision of ballots at the SET premises without notice to and without the participation of the petitioner. Significantly, "the conduct of proceedings" is confirmed by the SET Secretary in the letter we quoted above. As the issues raised show the petitioner's focus is not really on the COMELEC Orders denying the suspension of proceedings when the ballot boxes and other election materials pertinent to the election contest were transferred to the SET; the focus is on what the COMELEC did after to the issuance of the Resolutions. We read the petition in this context as these COMELEC Orders are now unassailable as the period to challenge them has long passed.

x x x x

 cralaw

To conclude, the rights to notice and to be heard are not material considerations in the COMELEC's handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC has been conducted at the SET that would require notice and hearing because of the possibility of prejudice to the other party. The COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of deliberating on the merits of the provincial election contest. In the context of our standard of review for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation of ballots this deliberation entailed.chanroblesvirtua|awlibary

 cralaw

x x x x

On the basis of the standards set by Section 4 of the COMELEC Rules of Procedure, and of the Constitution itself in the handling of election cases, we rule that the COMELEC action is a valid exercise of discretion as it is a suitable and reasonable process within the exercise of its jurisdiction over provincial election contests, aimed at expediting the disposition of this case, and with no adverse, prejudicial or discriminatory effects on the parties to the contest that would render the rule unreasonable.

4.WHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT FAILED TO CREDIT THE CLAIMS OF THE PETITIONER

I register my dissent to the ponencias finding that there was grave abuse of discretion on the part of the COMELEC En Banc.chanroblesvirtua|awlibary

Based on petitioners contentions, the following are the sub-issues to be resolved:

4.1      cralawWHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT INVALIDATED 9,160 BALLOTS OF THE PETITIONER AS WRITTEN BY ONE PERSON IN PAIRS OR IN GROUP; and

4.2      cralawWHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT INVALIDATED THOUSANDS OF VALID BALLOTS OF THE PETITIONER AS SPURIOUS, WRITTEN BY TWO OR MORE PERSONS AND AS MARKED BALLOTS WITH NO FACTUAL AND LEGAL BASIS.chanroblesvirtua|awlibary

The numerous allegations of petitioner under these sub-issues go into the manner of appreciation of ballots conducted by the COMELEC, and are factual in nature, requiring a thorough physical examination of the original ballots if a proper review is to be made.chanroblesvirtua|awlibary

As this Court has have held in Balingit v. Commission on Electionsc�fa39c�fal�.w:

The appreciation of the contested ballots and election documents involves a question of fact best left to the determination of the COMELEC, a specialized agency tasked with the supervision of elections all over the country, as it is the constitutional commission vested with the exclusive original jurisdiction over election contests involving regional, provincial and city officials, as well as appellate jurisdiction over election protests involving elective municipal and barangay officials. In the absence of grave abuse of discretion or any jurisdictional infirmity or error of law, the factual findings, conclusions, rulings, and decisions rendered by the said Commission on matters falling within its competence shall not be interfered with by this Court. (Emphases supplied.)

Even if the Court were to entertain petitioners assertions regarding the alleged erroneous invalidation by the COMELEC Second Division of petitioners 9,160 ballots on the ground that they were written by one person in pairs or in a group on the basis of photocopies of said ballots submitted by petitioner as Annexes II- II-3000 to the instant petition, a meticulous examination of the said copies reveals that the COMELEC Second Division was correct in declaring them invalid on the aforesaid ground.chanroblesvirtua|awlibary

The ponencia holds that the COMELEC En Banc gravely abused its discretion in justifying the invalidation of 9,160 ballots in the assailed December 1, 2009 COMELEC Second Division Resolution by mere generalizations bereft of specific details, in contravention of Rule 14, Section 1(d) of the new Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials,c�fa40c�fac�fal�.w which petitioner claims is applicable by analogy.However, I find that this rule cited by petitioner is inapplicable to the case at bar, as what is involved here is the appreciation of ballots in an election contest involving provincial officials.It is not difficult to understand that the said rule cannot be applied to provincial election contests, owing to the large number of ballots usually involved that would result in an extremely voluminous and unwieldy Resolution containing very specific details on why each and every contested ballot is deemed as written by one person in pairs or in a group. Conversely, petitioner did not present to this Court specific and detailed allegations for each and every ballot which he argues should not have been declared invalid for having been written by one.chanroblesvirtua|awlibary

After meticulously examining Annexes JJ-JJ-577, which are uncertified photocopies of ballots that petitioner alleges were erroneously invalidated as marked ballots, it appears that only 510 of these ballots may have been mistakenly invalidated as marked.Nevertheless, I cannot attribute grave abuse of discretion on the part of the COMELEC Second Division on this point on account of the complicated rules on what constitutes a mark on a ballot that would render it invalid.Besides, the aforesaid number does not suffice to overturn the results of the final count of the ballots.chanroblesvirtua|awlibary

Regarding petitioners contention that the COMELEC Second Division erroneously invalidated ballots in his favor as spurious, made erroneous computations, and did not take into account the fact that illiterate voters requiring voting assistance actually voted in the precincts in which COMELEC found ballots as written by one, our assessment of such generalized claims would require the appreciation of election documents, i.e., original ballots, Minutes of Voting, etc., which neither party submitted to the Court.Absent the presentation of such vital documents, petitioner cannot expect this Court to uphold his bare assertions.chanroblesvirtua|awlibary

In determining whether the COMELEC en banc acted with grave abuse of discretion in this case as asserted by petitioner, the standard used by the Court in Mendoza v. Commission on Electionsc�fa41c�fal�.wis as follows:

Thus, our standard of review is "grave abuse of discretion", a term that defies exact definition, but generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility". Mere abuse of discretion is not enough; the abuse must be grave to merit our positive action.chanroblesvirtua|awlibary

I maintain the presumption that the COMELEC regularly performed its official duties in relation to the revision of ballots in this election case, absent a clear showing that it acted in an arbitrary, whimsical, capricious, or despotic manner.Records show that the COMELEC ordered the respective Election Officers and City/Municipal Treasurers of the various cities and municipalities of Bulacan to undertake all the necessary security measures to preserve and secure the ballot boxes and their contents.c�fa42c�fac�fal�.wIn addition, the COMELEC granted the requests of both petitioner and respondent Pagdanganan for the designation of their respective security personnel in the storage facility where the ballot boxes were kept.c�fa43c�fac�fal�.wIts findings that some ballots were written by one or by two or more persons, or marked, or spurious were supported by laws and jurisprudence regarding the appreciation of ballots.c�fa44c�fac�fal�.w

Time and again, it has been held that this Court is not a trier of facts.To conclude, I quote from Juan v. Commission on Elections,c�fa45c�fal�.wwherein the Court said:

The Court's jurisdiction to review decisions and orders of the COMELEC on this matter operates only upon a showing of grave abuse of discretion on the part of the COMELEC. Verily, only where grave abuse of discretion is clearly shown shall the Court interfere with the COMELEC's judgment.chanroblesvirtua|awlibary

x x x The office of a petition for certiorari is not to correct simple errors of judgment; any resort to the said petition under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure is limited to the resolution of jurisdictional issues. Thus, it is imperative for the petitioner to show caprice and arbitrariness on the part of the COMELEC whose exercise of discretion is being assailed.chanroblesvirtua|awlibary

Proof of such grave abuse of discretion is found wanting in this case.chanroblesvirtua|awlibary

The COMELEC'S conclusion on a matter decided within its competence is entitled to utmost respect. It is not sufficient to allege that the COMELEC gravely abused its discretion. Such allegation should also be justified. In this case, petitioner failed to justify his assertion of grave abuse of discretion against the COMELEC. x x x Moreover, the COMELEC's proceedings were conducted in accordance with the prevailing laws and regulations.chanroblesvirtua|awlibary

WHEREFORE, premises considered, I vote to dismiss the instant Petition for Certiorari.chanroblesvirtua|awlibary

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

---

cralawEndnotes:

c�fa1c�fac�fal�.wRollo, pp. 197-207.chanroblesvirtua|awlibary

c�fa2c�fac�fal�.wId. at 947-1025.chanroblesvirtua|awlibary

c�fa3c�fac�fal�.wId. at 1026-1034.chanroblesvirtua|awlibary

c�fa4c�fac�fal�.wId. at 1117-1118.chanroblesvirtua|awlibary

c�fa5c�fac�fal�.wId. at 1135-1155.chanroblesvirtua|awlibary

c�fa6c�fac�fal�.wId. at 1156-1160.chanroblesvirtua|awlibary

c�fa7c�fac�fal�.wMendoza v. Commission on Elections, G.R. No. 188308, October 15, 2009.

c�fa8c�fac�fal�.wRollo, pp. 221-931.chanroblesvirtua|awlibary

c�fa9c�fac�fal�.wId. at 930.chanroblesvirtua|awlibary

c�fa10c�fac�fal�.wId. at 1408-1418.chanroblesvirtua|awlibary

c�fa11c�fac�fal�.wId. at 1239-1390.chanroblesvirtua|awlibary

c�fa12c�fac�fal�.wId. at 1219-1238.chanroblesvirtua|awlibary

c�fa13c�fac�fal�.wId. at 207.

c�fa14c�fac�fal�.wId. at 208-217.

c�fa15c�fac�fal�.wId. at 206.

c�fa16c�fac�fal�.wId. at 5245.chanroblesvirtua|awlibary

c�fa17c�fac�fal�.wId. at 5304-5308.chanroblesvirtua|awlibary

c�fa18c�fac�fal�.wId. at 5313-5315.chanroblesvirtua|awlibary

c�fa19c�fac�fal�.wId. at 5316.chanroblesvirtua|awlibary

c�fa20c�fac�fal�.wId. at 5317-5321.chanroblesvirtua|awlibary

c�fa21c�fac�fal�.wId. at 5322-5326.chanroblesvirtua|awlibary

c�fa22c�fac�fal�.wId. at 5288-5303.chanroblesvirtua|awlibary

c�fa23c�fac�fal�.wG.R. No. 190156, February 12, 2010.chanroblesvirtua|awlibary

c�fa24c�fac�fal�.wRollo, pp. 16-17.chanroblesvirtua|awlibary

c�fa25c�fac�fal�.wId. at 5189 and 5224.chanroblesvirtua|awlibary

c�fa26c�fac�fal�.wId. at 5264-5273.chanroblesvirtua|awlibary

c�fa27c�fac�fal�.wG.R. No. 164439, January 23, 2006, 479 SCRA 487, 493-494.chanroblesvirtua|awlibary

c�fa28c�fac�fal�.w398 Phil. 257, 282 (2000).chanroblesvirtua|awlibary

c�fa29c�fac�fal�.wRollo, pp. 16-17.Emphasis added.chanroblesvirtua|awlibary

c�fa30c�fac�fal�.wId. at 218.

c�fa31c�fac�fal�.wId. at 219-220.

c�fa32c�fac�fal�.wId.

c�fa33c�fac�fal�.wId. at 5304-5308.

c�fa34c�fac�fal�.wId. at 5306-5307.chanroblesvirtua|awlibary

c�fa35c�fac�fal�.wId. at 5310.

c�fa36c�fac�fal�.wId. at 5310-5311.chanroblesvirtua|awlibary

c�fa37c�fac�fal�.wG.R. No. 160465, May 27, 2004, 429 SCRA 789, 792-793. In Estrella we held:

The provision of the Constitution is clear that it should be the majority vote of all its members and not only those who participated and took part in the deliberations. Under the rules of statutory construction, it is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. Since the above-quoted constitutional provision states "all of its members," without any qualification, it should be interpreted as such.chanroblesvirtua|awlibary

x x x x

For the foregoing reasons then, this Court hereby abandons the doctrine laid down in Cua and holds that the COMELEC En Banc shall decide a case or matter brought before it by a majority vote of "all its members," and NOT majority of the members who deliberated and voted thereon.chanroblesvirtua|awlibary

c�fa38c�fac�fal�.wMendoza v. Commission on Elections,supranote 7.chanroblesvirtua|awlibary

c�fa39c�fac�fal�.wG.R. No. 170300, February 9, 2007, 515 SCRA 404, 410.chanroblesvirtua|awlibary

c�fa40c�fac�fal�.w(d) On Pair or Group of Ballots Written by One or Individual Ballots Written by Two When ballots are invalidated on the ground of written by one person, the court must clearly and distinctly specify why the pair or group of ballots has been written by only one person. The specific strokes, figures or letter indicating that the ballots have been written by one person must be specified. A simple ruling that a pair or group of ballots has been written would not suffice. The same is true when ballots are excluded on the ground of having been written by two persons. The court must likewise take into consideration the entries of the Minutes of Voting and Counting relative to illiterate or disabled voters, if any, who cast their votes through assistors, in determining the validity of the ballots found to be written by one person, whether the ballots are in pairs or in groups

c�fa41c�fac�fal�.wSupra note 7.chanroblesvirtua|awlibary

c�fa42c�fac�fal�.wRollo, p. 238.chanroblesvirtua|awlibary

c�fa43c�fac�fal�.wId. at 199.chanroblesvirtua|awlibary

c�fa44c�fac�fal�.wId. at 200.chanroblesvirtua|awlibary

c�fa45c�fac�fal�.wG.R. No. 166639, April 24, 2007, 522 SCRA 119, 128-129.