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[G.R. Nos. 140451-52. November 16, 1999]

MIRANDA vs. COMELEC, et al.

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated NOV 16 1999.

G.R. Nos. 140451-52(Joel G. Miranda vs. Commission on Elections, et al.)

This is a special civil action of certiorari filed by Joel G. Miranda to set aside the order, dated November 4, 1999, of the Commission on Elections directing the Secretary of the Department of Interior and Local Government "to execute the decision of the Honorable Supreme Court, copy of which is hereto attached pursuant to �44(a), Chapter 2, Title II of the Local Government Code of 1991."

Petitioner Miranda was proclaimed the duly elected mayor of Santiago City, Isabela in the May 11, 1998 elections. However, in a resolution, dated December 8, 1998, the COMELEC annulled his proclamation on the ground that his substitution of his father, Jose "Pempe" Miranda, was void. As his certificate of candidacy was filed beyond the period for filing it, petitioner's election was annulled. He brought the matter to this Court on certiorari. In its decision, dated July 28, 1999, rendered in G.R. No. 136351, this Court affirmed the resolution of the COMELEC insofar as it declared the election of petitioner to be void but reversed it insofar as it ordered the board of canvassers to reconvene and declare the winner. This Court held that pursuant to �44 of the Local Government Code, it is the vice mayor who is entitled to the position of mayor in case of vacancy therein. The Court subsequently denied petitioner's motion for reconsideration.

In support of his present petition, Miranda contends:

The questioned Order of respondent Comelec was issued without any motion for execution filed by any party nor any affirmative act from a prevailing or interested party in G.R. No. 136351. It was issued without any motion filed by any interested party, without any hearing, and without any notice to herein petitioner in violation of his right to due process and in violation of the aforesaid provision of the Rules of Court. The questioned Order was likewise in violation of Section 1, Rule 39 of the 1997 Rules of Civil Procedure which requires the filing of the appropriate motion for execution of a final judgment "with notice to the adverse party."

Petitioner respectfully submits that while a motion for execution of a final judgment may issue as a matter of right, "a motion for execution is required because there may be questions regarding the finality of the judgment" (Jose Feria, p. 115, 1997 Rules of Civil Procedure Annotated) especially where, as here, not even one of the supposed interested parties in G.R. No. 136351 had undertaken any move to seek the execution of the decision sought to be implemented by respondent Comelec's questioned Order.

Clearly, respondent Comelec committed grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the questioned Order as it deprived petitioner herein the right to question the execution of the said decision. This is so because petitioner, as this Honorable Court may likewise take judicial notice of, has a pending petition before this Honorable Court docketed as G.R. No. 140130 wherein he questioned the constitutionality of the minute resolution of this Honorable Court in G.R. No. 136351 dated September 29, 1999 denying with finality his motion for reconsideration of the decision of this Honorable Court in the latter case. Had a motion for execution been filed with sufficient notice to herein petitioner and hearing conducted by respondent Comelec, petitioner could have argued against the said motion in view of the pendency of his aforesaid petition (G.R. No. 140130) before this Honorable Court involving the decision sought to be enforced by respondent Comelec's questioned Order.

Furthermore, respondent Comelec is fully aware of the pendency of a recall petition (EM 99-006) against private respondent Navarro as Vice-Mayor of Santiago City on the basis of a recall resolution passed and approved by the majority of the members of the Preparatory Recall Assembly of Santiago City, a copy of which is attached as Annex "B". The pendency of this recall proceedings against private respondent Navarro raises the issue as to whether or not she could be installed as City Mayor which could have been properly ventilated and resolved had respondent Comelec not improvidently issued the questioned Order without notice and hearing.

Clearly, the enforcement or implementation of respondent Comelec's questioned Order will not only violate petitioner's right to due process but may render moot and academic petitioner's petition (G.R. No. 140130) now pending before this Honorable Court and may cause confusion as regards the said recall proceedings against respondent Vice.Mayor Navarro.

..

Section 2(f), Rule 38 of the Comelec Rules of Procedure provides that one of the duties of the Clerks of Court of the Commission on Elections is to "Execute orders, resolutions, decisions and processes issued by the Commission." Section 9(a), Rule 40 of the same Comelec Rules of Procedure provides for the fees to be collected by the "Sheriff" of the Commission on Elections "for executing any process of the Commission."

Clearly, there is nothing in the rules of the respondent Comelec authorizing the respondent DILG to implement or execute any order or process of the Commission on Elections. Thus, when respondent Comelec directed its co-respondent DILG to execute its questioned Order, it (respondent Comelec) violated its own Rules of Procedure. This alone should already render the questioned Order null and void.

The instant petition is without merit.

First. Petitioner contends that a motion for execution is required before a decision may be executed and that here no such motion has been filed by any interested party. The answer to this is that considering the decision of this Court in G.R. No. 136351, there is no prevailing party to file such a motion. As already stated, it is the vice mayor, who was not a party to the case, who should be installed in the office of mayor. Consequently, the only interested party which could ask for the execution of the decision is the COMELEC.

Quoting Justice Feria's book 1997 Rules of Civil Procedure (p. 115), petitioner contends that a motion is necessary "because there may be a question regarding the finality of judgment." There is no question, however, that the decision of this Court in G.R. No. 136351 is already final and executory. Petitioner's motion for reconsideration was denied with finality in the resolution of September 28, 1999, and entry of judgment was made on October 11, 1999.

Second. It is contended that petitioner filed a second case (G.R. No. 140130) assailing this Court's denial of his motion for reconsideration. Indeed, in his petition in that case, Miranda sought an injunction against the implementation of the final and executory decision in the first case (G.R. No. 136351). However, in its resolution, dated October 26, 1999, this Court dismissed the petition as it sought the annulment by the Court of its own final decision. An injunction by the Court against itself is an absurdity, it was declared.

Third. Nor is there merit in the contention that the preparatory recall assembly of Santiago City, Isabela had approved a resolution for the recall of private respondent Amelita S. Navarro. Under �72 of the Local Government Code, "the recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall." Until and unless a successor is elected, respondent Amelita S. Navarro remains in office and is entitled to assume the office of the mayor of Santiago City which has been vacant.

WHEREFORE, the petition is DISMISSED for lack of merit and the motion for issuance of a temporary restraining order and/or injunction is DENIED. This resolution is immediately executory.

^* Added. Petitioners urgent urgent motion for special raffle is NOTED.

[Pardo, J., no part.]

Very truly yours,

(Sgd.) LUZVIMINDA D. PUNO

Clerk of Court

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