J.A.B. Bulao & Associates

CASE 2011-0101: MARIA LAARNI L. CAYETANO VS. THE COMMISSION ON ELECTIONS and DANTE O. TINGA (G.R. NO. 193846, 12 APRIL 2011, NACHURA, J.) SUBJECT: POWER OF SC TO REVIEW ORDER OF DIVISION OF COMELEC. (BRIEF TITLE: CAYETANO VS. COMELEC).

Republic of thePhilippines

Supreme Court

Baguio City

EN BANC

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RESOLUTION

NACHURA, J.:

          Before us is a petition for certiorari under Rule 64, in relation to Rule 65 of the Rules of Court, assailing the Orders issued by public respondent Commission on Elections (COMELEC), through its Second Division, dated August 23, 2010^[1][1] and September 7, 2010,^[2][2] respectively. The two Orders were issued in relation to the election protest, docketed as EPC No. 2010-44, filed by private respondent Dante O. Tinga against petitioner Maria Laarni Cayetano.

          In the automated national and local elections held on May 10, 2010, petitioner and private respondent were candidates for the position of Mayor of Taguig City. Petitioner was proclaimed the winner thereof on May 12, 2010, receiving a total of Ninety-Five Thousand Eight Hundred Sixty-Five (95,865) votes as against the Ninety-Three Thousand Four Hundred Forty-Five (93,445) votes received by private respondent.

On May 24, 2010, private respondent filed an Election Protest against petitioner before the COMELEC. Private respondent’s protest listed election frauds and irregularities allegedly committed by petitioner, which translated to the latter’s ostensible win as Mayor of Taguig City. On the whole, private respondent claims that he is the actual winner of the mayoralty elections inTaguigCity.

         Posthaste, petitioner filed her Answer with Counter-Protest and Counterclaim on June 7, 2010. Petitioner raised, among others, the affirmative defense of insufficiency in form and content of the Election Protest and prayed for the immediate dismissal thereof.

          On July 1, 2010, the COMELEC held a preliminary conference and issued an Order granting private respondent a period within which to file the appropriate responsive pleading to the Answer of petitioner. The COMELEC likewise stated that it will rule on the affirmative defenses raised by petitioner.

          As previously adverted to, the COMELEC issued the assailed Preliminary Conference Order dated August 23, 2010, finding the protest filed by private respondent and counter-protest filed by petitioner to be sufficient in form and substance. Effectively, the COMELEC denied petitioner’s affirmative defense of insufficiency in form and substance of the protest filed by private respondent. The Order reads:

            WHEREFORE, finding the instant protest and the counter-protest to be sufficient in form and substance, the Commission (Second Division) hereby:

            1.         DIRECTS [private respondent] to make a cash deposit [of] ONE MILLION SIX HUNDRED NINE THOUSAND FIVE HUNDRED PESOS (P1,609,500.00) to defray the expenses for the recount of the ballots as well as for other incidental expenses relative thereto pertaining to the 217 clustered protested precincts composed of 1,073 established precinct[s] at the rate of P1,500.00 for each precinct as required in Section 2 Rule II of COMELEC Resolution No. 8804 payable in three (3) equal installments every twenty (20) days starting within five (5) days from receipt hereof.

            2.         DIRECTS [petitioner] to make a cash deposit of TWO MILLION EIGHT HUNDRED ELEVEN THOUSAND PESOS (P2,811,000.00) to defray the expenses for the recount of the ballots as well as for other incidental expenses relative thereto pertaining to the 380 protested clustered precinct[s] composed of 1,874 established precincts at the rate of P1,500.00 for each precinct as required in Section 2[,] Rule II of COMELEC Resolution No. 8804 payable in three (3) equal installments every twenty (20) days starting within five (5) days from receipt hereof.

            3.         DIRECTS the City Election Officer (EO) of Taguig City, to gather and collect the subject contested ballot boxes containing the ballots, and their keys from the City Treasurer of Taguig City and to deliver the same to ECAD, COMELEC, Intramuros, Manila, within fifteen (15) days from receipt of the ballot boxes from said Treasurer with prior notice to herein parties who may wish to send their respective duly authorized representatives to accompany the same, observing strict measures to protect the safety and integrity of the ballot boxes;

            4.         DIRECTS [private respondent] and [petitioner] to provide for the needed vehicle/s to the EO for the gathering and transportation of the subject contested ballot boxes. All expenses for the retrieval and transportation of the said ballot boxes shall be borne by both [private respondent] and [petitioner];

            5.         AUTHORIZES the City Election Officer to secure a sufficient number of security personnel either from the PNP or the AFP in connection with the afore-directed gathering and transportation of the subject ballot boxes;

            6.         DIRECTS [private respondent] to shoulder the travel expenses, per diems and necessary allowance of the COMELEC personnel, which include the PES and at most two (2) support staff, and the PNP/AFP personnel acting as security; and

            7.         DIRECTS the herein parties to shoulder the travelling expenses of their respective counsels and watchers.

            8.         DIRECTS [private respondent] in the protest proper and [petitioner] in the counter protest to bear the expenses for the rental of the Precinct Count Optical System (PCOS) machine that will be used for the authentication of the ballots as well as the payment for the information Technology Expert (IT Expert) who will assist in the authentication of the ballots, unless they are both willing to stipulate on the authenticity of the said ballots cast in connection with the May 10, 2010 National and Local Elections. DIRECTS further that in case [private respondent] agree[s] to stipulate on the authenticity of the ballots and [petitioner] raises the issue of authenticity, [petitioner] shall be the one to bear the fee for the rent of the PCOS machine as well as the service of the IT Expert.

            9.         DIRECTS the parties to file a manifestation whether they intend to secure photocopies of the contested ballots within a non-extendible period of five (5) days from receipt of this Order. No belated request for the photocopying of ballots shall be entertained by this Commission (Second Division). The photocopying shall be done simultaneous with the recount of the ballots considering that the ballot box storage area is no longer near the recount room.

            The pertinent Order for the constitution of Recount Committees and the schedule of recount shall be issued after the arrival of the subject ballot boxes and after the required cash deposits shall have been paid by [private respondent].

            The Preliminary Conference is hereby ordered terminated. The parties are given three (3) days from receipt hereof to file their comment, suggestions or corrections, if any, to this Preliminary Conference Order. After the lapse of said period, no more comment, suggestion or correction shall be entertained, and this Preliminary Conference Order shall thereafter be valid and binding upon the parties.^[3][3]

          Thereafter, on August 31, 2010, petitioner filed a Motion for Reconsideration of the Preliminary Conference Order relative to the denial of her affirmative defenses. Private respondent filed a Comment and Opposition thereto. Consequently, the COMELEC issued the second assailed Order dated September 7, 2010, denying petitioner’s Motion for Reconsideration.

          Hence, this petition for certiorari positing the singular issue of whether the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in refusing to dismiss the protest of private respondent for insufficiency in form and content.

          Not unexpectedly, private respondent refutes the allegations of petitioner and raises the procedural infirmity in the instant petition, i.e., the power of this Court to review decisions of the COMELEC under Section 3,^[4][4] Article IX-C of the Constitution, pursuant to the leading case of Repol v. COMELEC.^[5][5] Private respondent likewise counters that the petition fails to demonstrate grave abuse of discretion.

          Adamantly, petitioner insists that the case at bar differs from Repol since the herein assailed Orders constituted a final order of the COMELEC (Second Division) on that particular issue. Moreover, petitioner maintains that the COMELEC patently committed grave abuse of discretion.

          We cannot subscribe to petitioner’s proposition. The landmark case of Repol, as affirmed in the subsequent cases of Soriano, Jr.  v. COMELEC^[6][6] and Blanco v. COMELEC,^[7][7] leaves no room for equivocation.

          Reviewing well-settled jurisprudence on the power of this Court to review an order, whether final or interlocutory, or final resolution of a division of the COMELEC, Soriano definitively ruled, thus:

In the 2004 case of Repol v. Commission on Elections, the Court cited Ambil and held that this Court has no power to review via certiorari an interlocutory order or even a final resolution of a division of the COMELEC. However, the Court held that an exception to this rule applies where the commission of grave abuse of discretion is apparent on its face. In Repol, what was assailed was a status quo ante Order without any time limit, and more than 20 days had lapsed since its issuance without the COMELEC First Division issuing a writ of preliminary injunction. The Court held that the status quo ante Order of the COMELEC First Division was actually a temporary restraining order because it ordered Repol to cease and desist from assuming the position of municipal mayor of Pagsanghan, Samar and directed Ceracas to assume the post in the meantime. Since the status quo ante Order, which was qualified by the phrase “until further orders from this Commission,” had a lifespan of more than 20 days, this Order clearly violates the rule that a temporary restraining order has an effective period of only 20 days and automatically expires upon the COMELEC’s denial of preliminary injunction. The Court held:

“Only final orders of the COMELEC in Division may be raised before the COMELEC en banc. Section 3, Article IX-C of the 1987 Constitution mandates that only motions for reconsideration of final decisions shall be decided by the COMELEC en banc, thus:
            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. (Emphasis supplied.)
            Under this constitutional provision, the COMELEC en banc shall decide motions for reconsideration only of “decisions” of a Division, meaning those acts having a final character. Clearly, the assailed status quo ante Order, being interlocutory, should first be resolved by the COMELEC First Division via a motion for reconsideration.
            Furthermore, the present controversy does not fall under any of the instances over which the COMELEC en banc can take cognizance of the case. Section 2, Rule 3 of the 1993 COMELEC Rules of Procedure provides:

            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.

The present case is not one of the cases specifically provided under the COMELEC Rules of Procedure in which the COMELEC may sit en banc. Neither is this case one where a division is not authorized to act nor a case where the members of the First Division unanimously voted to refer the issue to the COMELEC en banc. Thus, the COMELEC en banc is not even the proper forum where Repol may bring the assailed interlocutory Order for resolution.
We held in Ambil, Jr. v. Commission on Elections that —

Under the existing Constitutional scheme, a party to an election case within the jurisdiction of the COMELEC in division [cannot] dispense with the filing of a motion for reconsideration of a decision, resolution or final order of the Division of the Commission on Elections because the case would not reach the Comelec en banc without such motion for reconsideration having been filed x x x.
            Repol went directly to the Supreme Court from an interlocutory order of the COMELEC First Division. Section 7, Article IX of the 1987 Constitution prescribes the power of the Supreme Court to review decisions of the COMELEC, as follows:
            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.
            We have interpreted this constitutional provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers. The decision must be a final decision or resolution of the COMELEC en banc. The Supreme Court has no power to review via certiorari an interlocutory order or even a final resolution of a Division of the COMELEC. Failure to abide by this procedural requirement constitutes a ground for dismissal of the petition. (Emphasis supplied.)

            However, this rule is not ironclad. In ABS-CBN Broadcasting Corporation v. COMELEC, we stated —

            This Court, however, has ruled in the past that this procedural requirement [of filing a motion for reconsideration] may be glossed over to prevent a miscarriage of justice, when the issue involves the principle of social justice or the protection of labor, when the decision or resolution sought to be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.

            The Court further pointed out in ABS-CBN that an exception was warranted under the peculiar circumstances of the case since there was hardly enough opportunity to move for a reconsideration and to obtain a swift resolution in time for the 11 May 1998 elections. The same can be said in Repol’s case. We rule that direct resort to this Court through a special civil action for certiorari is justified under the circumstances obtaining in the present case. (Emphasis supplied)

x x x x

            The general rule is that a decision or an order of a COMELEC Division cannot be elevated directly to this Court through a special civil action for certiorari. Furthermore, a motion to reconsider a decision, resolution, order, or ruling of a COMELEC Division shall be elevated to the COMELEC En Banc. However, a motion to reconsider an interlocutory order of a COMELEC Division shall be resolved by the division which issued the interlocutory order, except when all the members of the division decide to refer the matter to the COMELEC En Banc.

            Thus, in general, interlocutory orders of a COMELEC Division are not appealable, nor can they be proper subject of a petition for certiorari. To rule otherwise would not only delay the disposition of cases but would also unnecessarily clog the Court docket and unduly burden the Court. This does not mean that the aggrieved party is without recourse if a COMELEC Division denies the motion for reconsideration. The aggrieved party can still assign as error the interlocutory order if in the course of the proceedings he decides to appeal the main case to the COMELEC En Banc. The exception enunciated in Kho and Repol is when the interlocutory order of a COMELEC Division is a patent nullity because of absence of jurisdiction to issue the interlocutory order, as where a COMELEC Division issued a temporary restraining order without a time limit, which is the Repol case, or where a COMELEC Division admitted an answer with counter-protest which was filed beyond the reglementary period, which is the Kho case.

            This Court has already ruled in Reyes v. RTC of Oriental Mindoro,that “it is the decision, order or ruling of the COMELEC En Banc that, in accordance with Section 7, Art. IX-A of the Constitution, may be brought to the Supreme Court on certiorari.” The exception provided in Kho and Repol is unavailing in this case because unlike in Kho and Repol, the assailed interlocutory orders of the COMELEC First Division in this case are not a patent nullity. The assailed orders in this case involve the interpretation of the COMELEC Rules of Procedure. Neither will the Rosal case apply because in that case the petition for certiorari questioning the interlocutory orders of the COMELEC Second Division and the petition for certiorari and prohibition assailing the Resolution of the COMELEC En Banc on the main case were already consolidated.^[8][8]

Plainly, from the foregoing, the Court has no jurisdiction to review an order, whether final or interlocutory, even a final resolution of a division of the COMELEC. Stated otherwise, the Court can only review via certiorari a decision, order, or ruling of the COMELEC en banc in accordance with Section 7, Article IX-A  of the Constitution.

          Petitioner’s assertion that circumstances prevailing herein are different from the factual milieu attendant in Repol has no merit. As stated in Soriano, “the general rule is that a decision or an order of a COMELEC Division cannot be elevated directly to this Court through a special civil action for certiorari.” In short, the final order of the COMELEC (Second Division) denying the affirmative defenses of petitioner cannot be questioned before this Court even via a petition for certiorari.

          True, the aforestated rule admits of exceptions as when the issuance of the assailed interlocutory order is a patent nullity because of the absence of jurisdiction to issue the same.^[9][9] Unfortunately for petitioner, none of the circumstances permitting an exception to the rule occurs in this instance.

          Finally, certiorari will not lie in this case.

          The issuance of a special writ of certiorari has two prerequisites: (1) a tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (2) there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.^[10][10]

          Although it is not the duty of the Court to point petitioner, or all litigants for that matter, to the appropriate remedy which she should have taken, we refer her to the cue found in Soriano, i.e., “[t]he aggrieved party can still assign as error the interlocutory order if in the course of the proceedings he decides to appeal the main case to the COMELEC En Banc.” In addition, the protest filed by private respondent and the counter-protest filed by petitioner remain pending before the COMELEC, which should afford petitioner ample opportunity to ventilate her grievances.  Thereafter, the COMELEC should decide these cases with dispatch.

          WHEREFORE, the petition is DISMISSED. Costs against petitioner.

            SO ORDERED.

                                                ANTONIO EDUARDO B. NACHURA

                                                Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

MARIA LOURDES P.A. SERENO

Associate Justice

C E R T I F I C A T I O N

          Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

                                                RENATO C. CORONA

                                                Chief Justice