EN BANC

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

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

CONCURRING OPINION

VELASCO, JR., J.:

Notwithstanding the passage of time, the clear and express provisions of the Constitution on what constitute a majority vote on actions or proceeding before the Commission on Elections (COMELEC) continue and should remain to speak the words it plainly suggests.Given this perspective, I respectfully submit this opinion.chanroblesvirtua|awlibary

A summary of the pertinent facts follows.chanroblesvirtua|awlibary

Petitioner Joselito R. Mendoza (petitioner Mendoza) and respondent Roberto M. Pagdanganan (respondent Pagdanganan) were candidates for the gubernatorial post in the province of Bulacan in the May 14, 2007 elections. With a winning margin of fifteen thousand seven hundred thirty-two (15,732) votes, COMELEC proclaimed petitioner Mendoza as the duly elected governor of Bulacan.chanroblesvirtua|awlibary

On June 1, 2007, respondent Pagdanganan filed an election protest with the COMELEC questioning the outcome 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 for massive electoral fraud purportedly committed during the elections to favor petitioner Mendoza. Raffled to the Second Division of the COMELEC, the protest was docketed as EPC No. 2007-44.chanroblesvirtua|awlibary

On June 18, 2007, petitioner Mendoza filed an Answer With Counter-Protestc�fa1c�fac�fal�.w denying petitioner Mendozas allegations of massive electoral fraud and claimed that had it not been for the electoral fraud purportedly committed by respondent Pagdanganan in nine municipalities, petitioner Mendoza would have been credited with more votes.chanroblesvirtua|awlibary

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

As a result of the revision proceedings, the Second Division of the COMELEC proclaimed respondent Pagdanganan as the duly elected governor of the province of Bulacan in its Resolutionc�fa2c�fac�fal�.w dated December 1, 2009, 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 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�fa3c�fac�fal�.w

Subsequently, respondent Pagdanganan filed a Motion for Immediate Execution of Judgment Pending Motion for Reconsiderationc�fa4c�fac�fal�.w dated December 1, 2009. Petitioner Mendoza, on the other hand, filed an Opposition to the Motion for Executionc�fa5c�fac�fal�.w dated December 4, 2009 with the Second Division of the COMELEC and a Motion for Reconsiderationc�fa6c�fac�fal�.w dated December 4, 2009 with the COMELEC en banc.chanroblesvirtua|awlibary

By Resolution dated February 8, 2010 (the questioned Resolution), the COMELEC en banc, by a 3:3:1 vote, denied the motion for reconsideration filed by petitioner Mendoza. The dispositive portion of the questioned Resolution reads:

WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the Motion for Reconsideration for lack of merit. The Resolution of the Commission (Second Division) promulgated on December 1, 2009 ANNULLING the proclamation of JOSELITO R. MENDOZA as the duly elected Governor of Bulacan and DECLARING ROBERTO M. PAGDANGANAN as duly elected to said Office is AFFIRMED with modification.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 VACATE said office in favor of ROBERTO M. PAGDANGANAN.chanroblesvirtua|awlibary

x x x x

On February 11, 2010, an Urgent Motion to Recall the Resolution Promulgated on February 8, 20107c�fac�fal�.w(Urgent Motion) dated February 10, 2010 was filed by petitioner Mendoza before the COMELEC.In the said Urgent Motion, petitioner Mendoza contends, among others, that the desired majority, as mandated by Section 5, Rule 3 of the COMELEC Rules of Procedure, was not obtained in the COMELEC en bancconsidering that only three commissioners voted to deny the motion for reconsideration, while one dissented, and the remaining three commissioners took no part.chanroblesvirtua|awlibary

On February 12, 2010, petitioner Mendoza filed before this Court the instant petition questioning the COMELEC Resolution dated February 8, 2010 based on the same grounds he cited in his Urgent Motion and further disputing the appreciation and result of the revision of ballots which favored respondent Pagdanganan. This was subsequently supplemented by petitioner Mendoza with a Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a Temporary Restraining Order or a Status Quo Order8c�fac�fal�.w dated March 8, 2010 filed on even date.chanroblesvirtua|awlibary

In the meantime, the COMELEC en banc, in view of the 3:3:1 vote,issued on February 10, 2010 an Order for the rehearing of the protest. In the said rehearing, the parties agreed to submit the matter for resolution by the COMELEC en banc upon the submission of their respective memoranda.chanroblesvirtua|awlibary

Upon deliberations, the commissioners voted in the same manner, particularly: three concurred, three took no part, and one dissented from the Resolution dated December 1, 2009 of the Second Division of COMELEC.chanroblesvirtua|awlibary

As against the foregoing factual milieu, this Court is now tasked to ascertain whether the COMELEC committed grave abuse of discretion when it rendered, and even subsequently affirmed, the questioned Resolution notwithstanding the absence of the required majority in reaching a decision. Essentially, the issue for this Courts resolution is whether the manner and procedure by which the commissioners of COMELEC voted in the instant case was in accord with its own Rules of Procedure.chanroblesvirtua|awlibary

A careful examination of certain provisions of the Constitution, as well as of the laws applicable in the instant case, will reveal that since the concurrence of the majority of the members of the COMELEC en banc was not achieved, the COMELEC committed grave abuse of discretion in issuing the questioned Resolution affirming the ruling of its Second Division instead of dismissing the election protest of respondent Pagdanganan.chanroblesvirtua|awlibary

All election cases shall be heard and decided in divisions, provided that motions for reconsideration shall be decided by the COMELEC en banc

Under Section 3, Article IX-C of the 1987 Constitution, the COMELEC, sitting en banc, does not have the authority to decide election cases in the first instance as this authority belongs to the divisions of the COMELEC.Specifically:

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 reconsideration of decisions shall be decided by the Commission En Banc.chanroblesvirtua|awlibary

As the Court held in Pacificador v. COMELEC:c�fa9c�fac�fal�.w

Under Sec. 2, Article IV-C of the 1987 Constitution, the COMELEC exercises original jurisdiction over all contests, relating to the election, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over election contests involving elective municipal and barangay officials, and has supervision and control over the board of canvassers.  The COMELEC sitting en banc, however, does not have the authority to hear and decide election cases, including pre-proclamation controversies in the first instance, as the COMELEC in division has such authority.  The COMELEC en banc can exercise jurisdiction only on motions for reconsideration of the resolution or decision of the COMELEC in division. (Emphasis supplied)

As a matter of fact, if the COMELEC en banc renders a decision in an election case in the first instance, said decision is void. As held in Municipal Board of Canvassers of Glan v. COMELEC:c�fa10c�fac�fal�.w

Beginning with Sarmiento v. COMELEC and reiterated in subsequent cases, the most recent being Balindong v. COMELEC, the Court has upheld this constitutional mandate and consistently ruled that the COMELEC sitting en banc does not have the requisite authority to hear and decide election cases in the first instance. This power pertains to the divisions of the Commission and any decision by the Commission en banc as regards election cases decided by it in the first instance is null and void for lack of jurisdiction.chanroblesvirtua|awlibary

Verily, it is only when a motion for reconsideration is filed that the COMELEC en banc hears the same.Nonetheless, this does not in any way mean that the filing of such a motion constitutes an appeal to the COMELEC en banc.As fittingly pointed out by Commissioner Rene V. Sarmiento in his Dissenting Opinion:

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

Significantly, the COMELEC, sitting en banc or in divisions, is just one body. By analogy, even the Court which hears and decides cases in divisions and en banc is composed of only one body. Decisions of any division are not appealable to the en banc,and decisions of each division and the en banc form acts of only one Supreme Court.c�fa11c�fac�fal�.w

The adjudicatory power of the COMELEC consists of both original and appellate jurisdiction

A distinction must be made as to whether an election case is brought before the COMELEC in the exercise of its original or appellate jurisdiction.chanroblesvirtua|awlibary

As stated in Section 2(2), Article IX-C of the 1987 Constitution, the COMELEC is vested with adjudicatory power consisting of both original and appellate jurisdictions, to wit:

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

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable.chanroblesvirtua|awlibary

Concomitantly, election protests involving elective regional, provincial or city positions fall within the exclusive original jurisdiction of the COMELEC. On the other hand, election protests involving elective municipal and barangay positions fall within the exclusive original jurisdiction of the proper regional trial court and municipal trial court, respectively.  The COMELEC, in turn, exercises appellate jurisdiction over the decisions of either court.c�fa12c�fac�fal�.w

While the Constitution grants COMELEC appellate jurisdiction, it is clear that such appellate jurisdiction operates as a review by the COMELEC of decisions of trial courts.There is really no appeal within the COMELEC itself. As such, it is absurd to consider the filing of a motion for reconsideration as an appeal from the COMELEC, sitting in a division, to the COMELEC, sitting en banc.chanroblesvirtua|awlibary

At best, the filing of a motion for reconsideration with the COMELEC en bancof a decision or resolution of the division of the COMELEC should be viewed as part of one integrated process.Such motion for reconsideration before the COMELEC en bancis a constitutionally guaranteed remedial mechanism for parties aggrieved by a division decision or resolution.However, at the risk of repetition, it is not an appeal from the COMELEC division to the en banc.chanroblesvirtua|awlibary

Considering the dichotomy of the jurisdiction and powers of the COMELEC, the question now arises as to how the commission en banc should arrive at a decision in the absence of the required majority of all its members.chanroblesvirtua|awlibary

A majority vote of all its members is needed in order for the COMELEC en banc to reach a decision

The COMELEC is an independent constitutional commission. As such, the rule set forth by the Constitution as to how constitutional commissions should arrive at a decision applies to it.chanroblesvirtua|awlibary

As sanctioned by Section 7, Article IX-A of the 1987 Constitution:

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.)

The foregoing constitutional provision was faithfully observed by the COMELEC when it adopted the same in its own Rules of Procedure.Rule 3, Section 5(a) of the COMELEC Rules of Procedure provides:

Section 5. Quorum; Votes Required.(a) When sitting en banc, four (4) Members of the Commission shall constitute a quorum for the purpose of transacting business. The concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution, order or ruling.chanroblesvirtua|awlibary

In reinforcing the above-quoted provision, the Court,in Estrella v. COMELEC,c�fa13c�fac�fal�.w prescribed that the majority of all the commissioners is necessary for the pronouncement of a decision or resolution by the COMELEC en banc.Particularly:

Since Commissioner Lantion could not participate and vote in the issuance of the questioned order, thus leaving three (3) members concurring therewith, the necessary votes of four (4) or majority of the members of the COMELEC was not attained. The order thus failed to comply with the number of votes necessary for the pronouncement of a decision or order, as required under Rule 3, Section 5(a) of the COMELEC Rules of Procedure which provides:

Section 5. Quorum; Votes Required. (a) When sitting en banc, four (4) Members of the Commission shall constitute a quorum for the purpose of transacting business. The concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution, order or ruling.

WHEREFORE, the instant petition is GRANTED. The Status Quo Ante Order dated November 5, 2003 issued by the COMELEC En Banc is hereby NULLIFIED. This Resolution is IMMEDIATELY EXECUTORY. (Emphasis in the original.)

In cases, however, where the COMELEC en banc is equally divided in opinion or the necessary majority vote cannot be obtained, Rule 18, Section 6 of the 1993 COMELEC Rules of Procedure applies:

SEC.  6.   Procedure if Opinion is Equally Divided.When the Commission enbanc 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.chanroblesvirtua|awlibary

Based on the above-cited provision, if no decision is reached after the case is reheard, there are two different remedies available to the COMELEC, to wit: (1) dismiss the action or proceeding, if the case was originally commenced in the COMELEC; or (2) consider as affirmed the judgment or order appealed from, in appealed cases.This rule adheres to the constitutional provision that the COMELEC must decide by a majority of all its members.chanroblesvirtua|awlibary

Notably, it is evident that when Rule 18, Section 6 of the 1993 COMELEC Rules of Procedure speaks of cases originally commenced in the COMELEC, the reference is to election protests involving elective regional, provincial or city positions falling within its exclusive original jurisdiction.On the other hand, when the same provision mentioned appealed cases, this has reference to election protests involving elective municipal and barangay positions cognizable by the COMELEC in the exercise of its appellate jurisdiction.chanroblesvirtua|awlibary

In the first instance, an election protest is originally commenced before the COMELEC, which first decides by the division. If a motion for reconsideration is subsequently filed with the COMELEC en banc and no majority decision is reached even after a rehearing, then pursuant to Section 6, Rule 18 of the COMELEC Rules of Procedure, the election protest shall be dismissed.chanroblesvirtua|awlibary

In the second instance, the trial court originally decides an election protest.If the case is brought on appeal to the COMELEC, which again shall first act thru a division, the divisions decision may become the subject of a motion for reconsideration filed with the COMELEC en banc.And if before the en banc a majority decision is not reached even after a rehearing, then, also pursuant to Section 6, Rule 18 of the COMELEC Rules of Procedure, the appealed decision stands affirmed.chanroblesvirtua|awlibary

In both cases, however, if no motion for reconsideration is filed with the COMELEC en banc, the decision or resolution of the division shall remain.chanroblesvirtua|awlibary

Verily, since the election protest in the case at bar involves an elective provincial position, specifically, the gubernatorial post in the province of Bulacan, exclusive original jurisdiction over which is vested in the COMELEC, the election protest filed by respondent Pagdanganan against petitioner Mendoza should be dismissed for lack of necessary majority vote in the COMELEC en banc.chanroblesvirtua|awlibary

On a final note, it is worthwhile to remember the Courts ruling in Yangco v. The Division of the Court of First Instance of the City of Manila,c�fa14c�fac�fal�.w which warns us of the dangers in making unnecessary interpretation of clear and unambiguous provisions of law:

There is no need for interpretation or construction of the word in the case before us. Its meaning is so clear that interpretation and construction are unnecessary. Our simple duty is to leave untouched the meaning with which the English language has endowed the word; and that is the meaning which the ordinary reader would accord to it on reading a sentence in which it was found. Where language is plain, subtle refinements which tinge words so as to give them the color of a particular judicial theory are not only unnecessary but decidedly harmful. That which has caused so much confusion in the law, which has made it so difficult for the public to understand and know what the law is with respect to a given matter, is in considerable measure the unwarranted interference by judicial tribunals with English language as found in statutes and contracts, cutting out words here and inserting them there, making them fit personal ideas of what the legislature ought to have done or what parties should have agreed upon, giving them meanings which they do not ordinarily have, cutting, trimming, fitting, changing and coloring until lawyers themselves are unable to advise their clients as to the meaning of a given statute or contract until it had been submitted to some court for its interpretation and construction. As we said in the case of Lizarraga Hermanos vs. Yap Tico (24 Phil. Rep., 504, 513):

Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them. They are the very last functions which a court should exercise. The majority of the laws need no interpretation or construction. They require only application, and if there were more application and less construction, there would be more stability in the law, and more people would know what the law is.chanroblesvirtua|awlibary

Accordingly, I vote to grant the petition.chanroblesvirtua|awlibary

PRESBITERO J. VELASCO, JR.

Associate Justice