Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 212953 August 5, 2014
JOSE TAPALES VILLAROSA, Petitioner,
vs.
ROMULO DE MESA FESTIN and COMMISSION ON ELECTIONS, Respondents.
SEPARATE CONCURRING OPINION
BRION, J.:
I agree with the ponencia 's conclusion that the recourse to the present petition for certiorari is improper and that, even if we entertain the petition on the merits, the Commission on Elections ( Comelec) committed no grave abuse of discretion.
However, I write this Separate Concurring Opinion to reflect my view on the ponencia 's discussion on the propriety of the certiorari petition.
The Case
Jose Tapales Villarosa (petitioner) filed an election protest against Romulo de Mesa Festin (respondent) before the Regional Trial Court (RTC). After trial, the RTC nullified the respondent's proclamation and declared petitioner the victor in the 2013 mayoralty elections. The respondent appealed to the Comelec First Division. In the meantime, the RTC ordered the execution of its decision pending the respondent's appeal.
During the pendency of the respondent's appeal with the Comelec First Division, Comelec Chairman Sixto Brillantes constituted a "Special First Division," where he sat as Presiding Chairman together with Commissioner Al Parreno. The move was due to the absence of some of the Comelec Commissioners who had to attend to official duties abroad. The "Special First Division" then issued a preliminary injunction to prevent the execution of the RTC' s decision.
The petitioner moved for the quashal of the injunction. The Comelec First Division denied the petitioner's motion, prompting him to file the present for petition certiorari.
The Ponencia
The ponencia dismissed the petition because the petitioner failed to avail, in the words of Section 1, Rule 65, in relation to Rule 64, of the Rules of Court, of the "plain, speedy and adequate remedy in the ordinary course of law" before seeking recourse with the Court. This remedy is a motion for reconsideration (of the denial of the petitioner’s motion to quash the injunction) with the Comelec en banc.
According to the ponencia, under Section 5(c), Rule 3 of the 1993 Comelec Rules of Procedure, the general ruleis that the Comelec en banc cannotentertain a motion for reconsideration of an interlocutory order (e.g., denial of a motion to quash an injunction) of a division. One of the exceptions is where the members of the Division that issued the interlocutory order unanimously voted to refer the matter to the Comelec en banc. Section 5(c) reads:
Sec. 5. Quorum; Votes Required.- xxx.
x x x x
(c) Any motion to reconsider a decision, resolution, order or 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.[italics supplied]
The result of the general rule is that after the division denies reconsideration of its interlocutory order, the remedy of certiorari with the Supreme Court may only exceptionallybe availed of by the aggrieved party.
Under Section 5, Rule 20 of Comelec Resolution No. 88041 (March 22, 2010), however, a motion for reconsideration of an interlocutory order, among others, is now automatically referred to and necessarily must be coursed through the Comelec en banc.
According to the ponencia, there is a "stark contrast" between Section 5(c), Rule 3 of the 1993 Comelec Rules of Procedure, on one hand, and Section 5, Rule 20 of Comelec Resolution No. 8804, on the other hand. Unlike the earlier rule, the present ruleprovides an available remedy of a motion for reconsideration (of an interlocutory order of a division) with the Comelec en banc itself.
It is at this point that I express my own view on the propriety of a certiorari petition.
My Dissent
Contrary to the ponencia’sobservation, Section 5, Rule 20 of Comelec Resolution No. 8804 is already present under the 1993 Comelec Rules of Procedure as Section 5 of Rule 19,as follows: Sec. 5. How Motion for Reconsideration Disposed of. -Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc.[italics supplied]
In other words, whether under the 1993 Comelec Rules of Procedure or Comelec Resolution No. 8804, the Presiding Commissioner of the Comelec division is required to "certify the case to the [Comelec] en banc" when a motion for reconsideration of "adecision, resolution, order or ruling of a Division" is filed. While this requirement has been in existence under both Comelec issuances, the Comelec has interpreted this requirement as applicable only to a final- not interlocutory – order of the Comelec in view of Section 5(c), Rule 3 of the 1993 Comelec Rules of Procedure. This Court has likewise been of the same view.2
Thus in Cagas v. Commission on Elections,3 the Court observed that the proper remedy available to a party aggrieved by an interlocutory order issued by the Comelec division is to wait for the Comelec division to first decide the main case (election protest) on its merits; and if the decision is unfavorable, then to appeal this decision to the Comelec en banc, and question the propriety of the interlocutory order along with the other errors committed by the division upon the merits.
At this juncture, it may be observed that in Cagas, the petitioner moved for reconsideration of the assailed interlocutory order of the Comelec division in observance of the exception in Section 5(c), Rule 3 of the 1993 Comelec Rules of Procedure. As it stands, the only generally available remedy against an interlocutory order of a Comelec division is a motion for reconsideration addressed tothe division itself.
While the provision of Section 5(c), Rule 3 of the 1993 Comelec Rules of Procedure is nowhere found in Comelec Resolution No. 8804, this absence does not mean that the Comelec intended to repeal this provision and thereby support the ponencia’sreasoning. Section 3, Rule 1 of Comelec Resolution No. 8804 reads:
Section 3. Application of the Rules of Court and other related rules.- The Commission on Elections (COMELEC) Rules of Procedure, the Rules of Court, and the Rules on Electronic Evidence shall apply by analogy, or in a suppletory character, and whenever necessary, practicable, and convenient.
In other words,Section 5(c), Rule 3 of the 1993 Comelec Rules of Procedure continues to be the governing rule to determine what cases are required to be elevated to the Comelec en banc. Simply put, it is not the "change" in the rules – because thereis none – that makes the present petition premature for lack of a motion for reconsideration it being filed with the Comelec en banc. The prematurity of the petition lies in the petitioner’s failure to file a motion for reconsideration with the Comelec division itself which rendered the assailed order.
But even if the petitioner did file a motion for reconsideration with the Comelec First Division, the present petition must still fail because the petitioner failed to establish grave abuse of discretion, as the ponencia correctly held. Again, what we mentioned in Cagas v. Commission on Elections4 is worth emphasizing:
In a situation xxx where the Commission in division committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing interlocutory ordersrelative to an action pending before it andthe controversy did not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure,5 the remedy of the aggrieved party is not to refer the controversy to the Commission en bancas this is not permissible under its present rules but to elevate it to this Court viaa petition for certiorariunder Rule 65 of the Rules of Court.
Thus, in Sahali v. COMELEC,6 the Court already clarified that this Court may take cognizance of a certiorari action directed against an interlocutory order issued by a division of the COMELEC when the following circumstances are present: first, the order was issued without jurisdiction or in excess ofjurisdiction or with grave abuse of discretion tantamount to lack or excess of jurisdiction; and second, under the COMELEC Rules of Procedure, the subject of the controversy is a matter which (1) the COMELEC en banc may not sit and consider; (2) a division is not authorized to act; or (3) the members of the division unanimously vote to refer to the COMELEC en banc.
In short, the absence of an available remedy with the Comelec en bane must indispensably be coupled with a strong case for grave abuse of discretion in order to warrant the issuance of the writ of certiorari.
While I ultimately agree with the ponencia 's conclusion, I submit that the ponencia 's reasoning on the propriety of a certiorari petition may result in confusion on what is otherwise a clear subject in jurisprudence. If the Court intends to require a party to secure a certification and, eventually, a decision from the Comelec en bane on a challenge to an interlocutory order of a Comelec division (as a requisite for filing a certiorari petition with the Court), then the Court's action must have some clear basis under the Comelec rules.
ARTURO D. BRION
Associate Justice
Footnotes
1 Section 5. How motion for Reconsideration Disposed of.- Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the ECAD Clerk concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case tothe Commission en banc. [italics supplied]
2 See Cagas v. Commission on Elections, G.R. No. 194139, January 24, 2012, 663 SCRA 644, 656.
3 Ibid.
4 Ibid. emphasis and underscore ours, italics supplied.
5 Sec. 2. The Commission En Banc. - The Commission shall sit en banc in cases hereinafter specifically provided, or in pre-proclamation cases upon a vote of a majority of the members of the Commission, or in all other cases where a division is not authorized to act, or where, upon a unanimous vote of all the Members of a Division, an interlocutory matter or issue relative to an action or proceeding before it is decided to be referred to the Commission en banc. [italics supplied, emphasis ours]
6 381 Phil. 505 (2000).
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