Ruling
We dismiss the petition for lack of merit.
The governing provision is Section 7, Article IX of the 1987 Constitution, which provides:
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.
This provision, although it confers on the Court the power to review any decision, order or ruling of the COMELEC, limits such power to a final decision or resolution of the COMELEC en banc, and does not extend to an interlocutory order issued by a Division of the COMELEC. Otherwise stated, the Court has no power to review on certiorari an interlocutory order or even a final resolution issued by a Division of the COMELEC. The following cogent observations made in Ambil v. Commission on Elections24 are enlightening, viz:
To begin with, the power of the Supreme Court to review decisions of the Comelec is prescribed in the Constitution, 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.” [emphasis supplied]
“We have interpreted this provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.” This decision must be a final decision or resolution of the Comelec en banc, not of a division, certainly not an interlocutory order of a division. The Supreme Court has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the Commission on Elections.
The mode by which a decision, order or ruling of the Comelec en banc may be elevated to the Supreme Court is by the special civil action of certiorari under Rule 65 of the 1964 Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedure, as amended.
Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A motion for reconsideration is a plain andadequate remedy provided by law. Failure to abide by this procedural requirement constitutes a ground for dismissal of the petition.
In like manner, a decision, order or resolution of a division of the Comelec must be reviewed by the Comelec en banc via a motion for reconsideration before the final en banc decision may be brought to the Supreme Court on certiorari. The pre-requisite filing of a motion for reconsideration is mandatory.xxx25
There is no question, therefore, that the Court has no jurisdiction to take cognizance of the petition for certiorari assailing the denial by the COMELEC First Division of the special affirmative defenses of the petitioner. The proper remedy is for the petitioner to wait for the COMELEC First Division to first decide the protest on its merits, and if the result should aggrieve him, to appeal the denial of his special affirmative defenses to the COMELEC en banc along with the other errors committed by the Division upon the merits.
It is true that there may be an exception to the general rule, as the Court conceded in Kho v. Commission on Elections.26 In that case, the protestant assailed the order of the COMELEC First Division admitting an answer with counter-protest belatedly filed in an election protest by filing a petition for certiorari directly in this Court on the ground that the order constituted grave abuse of discretion on the part of the COMELEC First Division. The Court granted the petition and nullified the assailed order for being issued without jurisdiction, and explained the exception thuswise:
As to the issue of whether or not the case should be referred to the COMELEC en banc, this Court finds the respondent COMELEC First Division correct when it held in its order dated February 28, 1996 that no final decision, resolution or order has yet been made which will necessitate the elevation of the case and its records to the Commission en banc. No less than the Constitution requires that election cases must be heard and decided first in division and any motion for reconsideration of decisions shall be decided by the Commission en banc. Apparently, the orders dated July 26, 1995, November 15, 1995 and February 28, 1996 and the other orders relating to the admission of the answer with counter-protest are issuances of a Commission in division and are all interlocutory orders because they merely rule upon an incidental issue regarding the admission of Espinosa's answer with counter-protest and do not terminate or finally dispose of the case as they leave something to be done before it is finally decided on the merits. In such a situation, the rule is clear that the authority to resolve incidental matters of a case pending in a division, like the questioned interlocutory orders, falls on the division itself, and not on the Commission en banc. Section 5 (c), Rule 3 of the COMELEC Rules of Procedure explicitly provides for this,
Sec. 5. Quorum; Votes Required xxx
xxx
(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. (emphasis provided)
Furthermore, a look at Section 2, Rule 3 of the COMELEC Rules of Procedure confirms that the subject case does not fall on any of the instances over which the Commission en banc can take cognizance of. It reads as follows:
Section 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 a 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.
In the instant case, it does not appear that the subject controversy is one of the cases specifically provided under the COMELEC Rules of Procedure in which the Commission may sit en banc. Neither is it shown that the present controversy a case where a division is not authorized to act nor a situation wherein the members of the First Division unanimously voted to refer the subject case to the Commission en banc. Clearly, the Commission en banc, under the circumstances shown above, can not be the proper forum which the matter concerning the assailed interlocutory orders can be referred to.
In a situation such as this where the Commission in division committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending before it and the controversy did not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved party is not to refer the controversy to the Commission en banc as this is not permissible under its present rules but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court. (Bold emphasis supplied)
Under the exception, therefore, the Court may take cognizance of a petition for certiorari under Rule 64 to review an interlocutory order issued by a Division of the COMELEC on the ground of the issuance being made without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction when it does not appear to be specifically provided under the COMELEC Rules of Procedure that the matter is one that the COMELEC en banc may sit and consider, or a Division is not authorized to act, or the members of the Division unanimously vote to refer to the COMELEC en banc. Of necessity, the aggrieved party can directly resort to the Court because the COMELEC en banc is not the proper forum in which the matter concerning the assailed interlocutory order can be reviewed.
However, the Kho v. Commission on Elections exception has no application herein, because the COMELEC First Division had the competence to determine the lack of detailed specifications of the acts or omissions complained of as required by Rule 6, Section 7 of COMELEC Resolution No. 8804, and whether such lack called for the outright dismissal of the protest. For sure, the 1987 Constitution vested in the COMELEC broad powers involving not only the enforcement and administration of all laws and regulations relative to the conduct of elections but also the resolution and determination of election controversies.27 The breadth of such powers encompasses the authority to determine the sufficiency of allegations contained in every election protest and to decide based on such allegations whether to admit the protest and proceed with the hearing or to outrightly dismiss the protest in accordance with Section 9, Rule 6 of COMELEC Resolution No. 8804.
The Court has upheld the COMELEC’s determination of the sufficiency of allegations contained in election protests, conformably with its imperative duty to ascertain in an election protest, by all means within its command, who was the candidate elected by the electorate.28 Indeed, in Panlilio v. Commission on Elections,29 we brushed aside the contention that the election protest was insufficient in form and substance and was a sham for having allegations couched in general terms, stating:
In Miguel v. COMELEC, the Court belittled the petitioner’s argument that the protestant had no cause of action, as the allegations of fraud and irregularities, which were couched in general terms, were not sufficient to order the opening of ballot boxes and counting of ballots. The Court states the rules in election protests cognizable by the COMELEC and courts of general jurisdiction, as follows:
The rule in this jurisdiction is clear and jurisprudence is even clearer. In a string of categorical pronouncements, we have consistently ruled that when there is an allegation in an election protest that would require the perusal, examination or counting of ballots as evidence, it is the ministerial duty of the trial court to order the opening of the ballot boxes and the examination and counting of ballots deposited therein.
In a kindred case, Homer Saquilayan v. COMELEC, the Court considered the allegations in an election protest, similar to those in this case, as sufficient in form and substance.
Again, in Dayo v. COMELEC, the Court declared that allegations of fraud and irregularities are sufficient grounds for opening the ballot boxes and examining the questioned ballots. The pronouncement is in accordance with Section 255 of the Omnibus Election Code, which reads:
Judicial counting of votes in election contest. – Where allegations in a protest or counter-protest so warrant, or whenever in the opinion of the court in the interests of justice so require, it shall immediately order the book of voters, ballot boxes and their keys, ballots and other documents used in the election be brought before it and that the ballots be examined and the votes recounted.
In this case, the COMELEC Second Division found that the allegations in the protest and counter-protest warranted the opening of the contested ballot boxes and the examination of their contents to settle at once the conflicting claims of petitioner and private respondent.
The petitioner adds that with the Court having noted the reliability and accuracy of the PCOS machines and consolidation/canvassing system (CCS) computers in Roque, Jr. v. Commission on Elections,30 Bautista’s election protest assailing the system and procedure of counting and canvassing of votes cast in an automated system of elections should be immediately dismissed.
We are not persuaded.
Roque, Jr. v. Commission on Elections does not preclude the filing of an election protest to challenge the outcome of an election undertaken in an automated system of elections. Instead, the Court only ruled there that the system and procedure implemented by the COMELEC in evaluating the PCOS machines and CCS computers met the minimum system requirements prescribed in Section 7 of Republic Act No. 8436.31 The Court did not guarantee the efficiency and integrity of the automated system of elections, as can be gleaned from the following pronouncement thereat:
The Court, however, will not indulge in the presumption that nothing would go wrong, that a successful automation election unmarred by fraud, violence, and like irregularities would be the order of the moment on May 10, 2010. Neither will it guarantee, as it cannot guarantee, the effectiveness of the voting machines and the integrity of the counting and consolidation software embedded in them. That task belongs at the first instance to Comelec, as part of its mandate to ensure clean and peaceful elections. This independent constitutional commission, it is true, possesses extraordinary powers and enjoys a considerable latitude in the discharge of its functions. The road, however, towards successful 2010 automation elections would certainly be rough and bumpy. The Comelec is laboring under very tight timelines. It would accordingly need the help of all advocates of orderly and honest elections, of all men and women of goodwill, to smoothen the way and assist Comelec personnel address the fears expressed about the integrity of the system. Like anyone else, the Court would like and wish automated elections to succeed, credibly.32
