EN BANC

[ G.R. No. 105628, August 06, 1992 ]

RODULFO SARMIENTO, PETITIONER,
VS.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS
OF VIRAC AND JOSE "CITO" ALBERTO II, RESPONDENTS.
[G.R. NO. 105725. AUGUST 6, 1992]
EMMANUEL R. ALFELOR, PETITIONER,
VS.
COMMISSION ON ELECTIONS, THE CITY BOARD OF CANVASSERS
OF IRIGA CITY AND JOSE C. VILLANUEVA, RESPONDENTS.
[G.R. NO. 105727. AUGUST 6, 1992]
LEANDRO I. VERCELES, SR., PETITIONER,
VS.
COMMISSION
ON
ELECTIONS,
PROVINCIAL
BOARD
OF
CANVASSERS OF CATANDUANES AND ROSALIE ALBERTOESTACIO, RESPONDENTS.
[G.R. NO. 105730. AUGUST 6, 1992]
JESUS TYPOCO, JR., PETITIONER,
VS.

COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF CAMARINES NORTE, AND MUNICIPAL BOARD OF
CANVASSERS OF JOSE PANGANIBAN, CAMARINES NORTE,
RESPONDENTS.
[G.R. NO. 105771. AUGUST 6, 1992]
ALBERTO U. GENOVA, JR., PETITIONER,
VS.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS
OF CABUSAO, NEBRIDO F. SANTIAGO, AND EUGENIO AGUILAR,
RESPONDENTS.
[G.R. NO. 105778. AUGUST 6, 1992]
MARIO S. MANLICLIC, PETITIONER,
VS.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS
OF GEN. NATIVIDAD, NUEVA ECIJA, BOARD OF ELECTION
INSPECTORS OF PRECINCT NOS. 12-A AND 13, BARANGAY MATAAS
NA KAHOY, GEN. NATIVIDAD, NUEVA ECIJA; BOARD OF ELECTION
INSPECTORS OF PRECINCT NOS. 15-A, BARANGAY PICALEON, GEN.
NATIVIDAD, NUEVA ECIJA; PRECINCT NO. 25-A OF SAPANG BATO,
GEN. NATIVIDAD, NUEVA ECIJA; THE ELECTION REGISTRAR AND
APOLONIO PASCUAL, RESPONDENTS.
[G.R. NO. 105797. AUGUST 6, 1992]
FRANCISCO G. RABAT, PETITIONER,
VS.
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANPage 2

VASSERS OF DAVAO ORIENTAL AND ROSALIND YBASCO LOPEZ,

RESPONDENTS.
[G.R. NO. 105919. AUGUST 6, 1992]
DATU MOHAMMAD A. SINSUAT, PETITIONER,
VS.
COMMISSION ON ELECTIONS, DATU MICHAEL SINSUAT AND ATTY.
RUBEN PLATON, RESPONDENTS.
[G.R. NO. 105977. AUGUST 6, 1992]
ROSARIO A. VELASCO, PETITIONER,
VS.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS
OF TERNATE, CAVITE, AND CONDRADO LINDO, RESPONDENTS.
RESOLUTION
DAVIDE, JR., J.:
The special civil actions for certiorari, hereby jointly resolved, filed under
Rule 65 of the Rules of Court, seek to set aside the Resolutions of
respondent Commission on Elections (COMELEC) in the following Special
Cases (SPC):
1) G.R. No. 105628 -- SPC No. 92-266 granting the appeal from the ruling
of the Municipal Board of Canvassers of Virac, Catanduanes which ordered
the exclusion from the canvass of one (1) election return;
2) G.R. No. 105725 -- SPC No. 92-323 reversing the ruling of the City
Board of Canvassers of Iriga City which ordered the exclusion from the
Page 3

canvass of six (6) election returns and in UND No. 92-243 ordering the said
Board of Canvassers to include in the canvass the election returns involved
therein;
3) G.R. No. 105727 -- SPC No. 92-288 dismissing the appeal of petitioner
from the ruling of the Provincial Board of Canvassers of Catanduanes
which ordered the inclusion in the canvass the certificate of canvass for the
municipality of Virac, excluding the returns from 48 precincts;
4) G.R. No. 105730 -- SPC No. 92-315 affirming the ruling of the Municipal
Board of Canvassers of Jose Panganiban, Camarines Norte which
dismissed petitioner's opposition to the composition of the said Municipal
Board of Canvassers;
5) G.R. No. 105771 -- SPC No. 92-271 affirming the ruling of the Municipal
Board of Canvassers of Cabusao, Camarines Sur which, among others,
rejected petitioner's objection to certain election returns;
6) G.R. No. 105778 -- SPC No. 92-039 dismissing said case for noncompliance with Section 20 of R.A. No. 7166;
7) G.R. No. 105797 -- SPC No. 92-153 affirming the rulings of the
Provincial Board of Canvassers of Davao Oriental which rejected
petitioner's objections to the canvass of some certificates of canvass;
8) G.R. No. 105919 -- SPC No. 92-293 dismissing petitioner's appeal from
the ruling of the Municipal Board of Canvassers of Upi Nuro, Maguindanao;
9) G.R. No. 105977 -- SPC No. 92-087 denying the amended preproclamation petition, which is an appeal from the rulings of the Municipal
Board of Canvassers of Ternate, Cavite, and denying a subsequent motion
to resolve the issues raised in said amended petition.
Comments had been filed only in G.R. No. 105727 and G.R. No. 105797.
This Court dispenses with the Comments in the other cases.
Page 4

Petitioners impugn the challenged resolutions above specified as having

been issued with grave abuse of discretion in that, inter alia, the
Commission, sitting en banc, took cognizance of and decided the appeals
without first referring them to any of its Divisions.
Section 3, subdivision C, Article IX of the 1987 Constitution expressly
provides:
"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).
The 1973 Constitution prescribed another rule. Its Section 3, subdivision C
of Article XII provided as follows:
"SEC. 3. The Commission on Elections may sit en banc or in three
divisions. All election cases may be heard and decided by divisions, except
contests involving Members of the Batasang Pambansa, which shall be
heard and decided en banc. x x x
It is clear from the abovequoted provision of the 1987 Constitution that
election cases include pre-proclamation controversies, and all such cases
must first be heard and decided by a Division of the Commission. The
Commission, sitting en banc, does not have the authority to hear and
decide the same at the first instance. In the COMELEC RULES OF
1
PROCEDURE, pre-proclamation cases are classified as Special Cases
and, in compliance with the above provision of the Constitution, the two (2)
Divisions of the Commission are vested with the authority to hear and
2
decide these Special Cases.
Rule 27 thereof governs Special Cases;
specifically, Section 9 of the said Rule provides that appeals from rulings of
the Board of Canvassers are cognizable by any of the Divisions to which
they are assigned and not by the Commission en banc. Said Section reads:
Page 5

"SEC. 9. Appeals from rulings of Board of Canvassers. -- (a) A party

aggrieved by an oral ruling of the board of canvassers who had stated
orally his intent to appeal said ruling shall, within five days following receipt
of a copy of the written ruling of the board of canvassers, file with the
Commission a verified appeal, furnishing a copy thereof to the board of
canvassers and the adverse party.
(b) The appeal filed with the Commission shall be docketed by the Clerk of
Court concerned.
(c) The answer/opposition shall be verified.
(d) The Division to which the case is assigned shall immediately set the
case for hearing." (Emphasis supplied)
xxx
A motion to reconsider the decision or resolution of the Division concerned
3
may be filed within five (5) days from its promulgation.
The Clerk of
Court of the Division shall, within twenty-four (24) hours from the filing
thereof, notify the Presiding Commissioner of such fact; in turn, the latter
4
shall certify the case to the Commission en banc.
Thereafter, the Clerk
of Court of the Commission shall calendar the motion for reconsideration
for the resolution of the Commission en banc within ten (10) days from the
5
certification.
Indisputably then, the COMELEC en banc acted without jurisdiction, or with
grave abuse of discretion, when it resolved the appeals of petitioners in the
abovementioned Special Cases without first referring them to any of its
Divisions. Said resolutions are, therefore, null and void and must be set
aside. Consequently, the appeals are deemed pending before the
Commission for proper referral to a Division.
A resolution directing the COMELEC to assign said Special Cases to the
Divisions pursuant to Section 8, Rule 3 of its Rules on assignment of cases
Page 6

would, logically, be in order. However, Section 16 of R.A. No. 7166

provides that all pre-proclamation cases pending before it shall be deemed
terminated at the beginning of the term of the office involved. The said
section provides as follows:
xxx
"All pre-proclamation cases pending before the Commission shall be
deemed terminated at the beginning of the term of the office involved and
the rulings of the boards of canvassers concerned shall be deemed
affirmed, without prejudice to the filing of a regular election protest by the
aggrieved party. However, proceedings may continue when on the basis of
the evidence thus far presented, the Commission determines that the
petition appears meritorious and accordingly issues an order for the
proceeding to continue or when an appropriate order has been issued by
the Supreme Court in a petition for certiorari."
The terms of the offices involved in the Special Cases subject of these
7
petitions commenced at noon of 30 June 1992.
These cases have thus
been rendered moot and such a resolution would only be an exercise in
futility.
Accordingly, the instant petitions are DISMISSED without prejudice to the
filing by petitioners of regular election protests. If the winning candidates for
the positions involved in the Special Cases subject of these petitions have
already been proclaimed, the running of the period to file the protests shall
be deemed Suspended by the pendency of such cases before the
COMELEC and of these petitions before this Court.
The Temporary Restraining Orders issued in G.R. No. 105727, G.R. No.
105730 and G.R. No. 105797 are hereby LIFTED.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Padilla, Bidin, Grio-Aquino, Medialdea,
Page 7

Regalado, Romero, Nocon and Bellosillo, JJ., concur.

Cruz, J., see concurring opinion.
Feliciano, J., please see concurring and dissenting opinion.

Section 4 (h), Rule 1.

Section 3, Rule 3.

Section 2, Rule 19.

Section 5, Rule 19.

Section 6, Id.

An Act Providing For Synchronized National And Local Elections And

For Electoral Reforms, Authorizing Appropriations Therefor, And For Other
Purposes.
7

Section 2, Article XVIII, 1987 Constitution.

SEPARATE OPINION
CRUZ, J.:
My brother Feliciano submits powerfully persuasive arguments, as usual,
and I am tempted to join him except for the prescription of the Constitution.
Article IX-C, Section 3, says quite clearly:
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
Page 8

election cases shall be heard and decided in division, provided that motions
for reconsideration of decisions shall be decided by the Commission en
banc.
The language of the provision suggests that it is jurisdictional and not
merely directory and therefore requires that all election cases be heard first
by the division, whose decision may be reconsidered only by the
Commission en banc.
The Supreme Court itself cannot consider in the first instance cases
coming under the exclusive original jurisdiction of a lower court, like a
petition for declaratory relief. Even in the interest of a speedy administration
of justice, we can exercise only appellate jurisdiction over such a case
under Article VIII, Section 5(2) of the Constitution.
I find the quoted provision ill-considered, to say the least, in view of the
practical difficulties it may spawn. But we are dealing with a mandatory
provision of the Constitution which, unless amended (corrected may be a
better word), must be observed.

CONCURRING AND DISSENTING OPINION

FELICIANO, J.:
I concur in the result reached by the majority in the captioned cases, i.e.,
the dismissal of the various Petitions for Certiorari in the cases disposed of
by this Joint Resolution.
I am, however, compelled to dissent from the Joint Resolution to the extent
that that Resolution holds that the Comelec En Banc acted without
jurisdiction, or with grave abuse of discretion, when it dismissed, for
instance, the appeal from the Municipal Board of Canvassers of Cabusao,
Camarines Sur, of petitioner Genova, among others, without first referring
such appeal to either of its Divisions, and holding such dismissal as null
Page 9

and void and setting the same aside.

Article IX(C) (3) of the 1987 Constitution reads as follows:
"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."
It is important to start with the general proposition that the Comelec may sit
En Banc or in two (2) divisions. It is also helpful to note that the powers and
functions of the Commission as specified in Article IX(C)(2) of the Constitution are lodged in "The Commission on Elections" as a whole; Section 2 did
not try to distinguish between powers and functions which are to be
exercised En Banc and those to be exercised by Divisions.
The second important constitutional principle is that the fundamental
objective of the above-quoted Article IX(C)(3) is the expediting of the
disposition of both election cases and pre-proclamation controversies. We
have, in many cases, stressed heavily the need for disposing of election
1
protests as rapidly as possible.
We have also many times ruled that preproclamation controversies are administrative and summary in character
and are to be resolved with the utmost dispatch subject, of course, to the
2
requirements of notice to the parties and fairness in procedure.
Thirdly, I submit it is clear that the term "election cases" in the last sentence
of Article IX(C)(3) is properly read as referring to election contests or
election protests, and not to all proceedings or controversies arising out of
or relating to elections. Article IX(C)(3), in its first sentence, clearly
distinguishes "election cases" from "pre-proclamation controversies," and
extends the constitutional objective of expeditious disposition not only to
"election cases" but also to "pre-proclamation controversies." Thus, while
the second sentence of Article IX(C)(3) speaks of "all such election cases,"
there is no indiscriminate lumping together of election protests or election
Page 10

cases properly so-called with pre-proclamation controversies.

It is pointed out by my distinguished brother in the Court, Davide, J., that
Rule 3(3) of the Rules of Procedure of the Comelec (Comelec Rules)
provides that:
"Sec. 3. The Commission sitting in divisions. -- The Commission shall sit in
two (2) divisions to hear and decide protests or petitions in ordinary actions,
special actions, special cases, provisional remedies, contempt and special
proceedings except in accreditation of citizen's arms of the Commission,"
(Underscoring supplied)
that "special cases" embrace pre-proclamation controversies (Rule 27,
Comelec Rules), and that Rule 27(9) of the Comelec Rules states, among
other things, that
"(d) the Division to which [the appeal from rulings of a Board of
Canvassers] is assigned shall immediately set the case for hearing."
The majority is here, of course, trying to interpret Article IX(C)(3) of the
1987 Constitution by referring to relevant provisions of the Comelec Rules
adopted after the 1987 Constitution went into effect. From the foregoing,
my learned brother Davide concludes that
"[i]t is clear from [Article IX(C)(3) of the 1987 Constitution] that election
cases include pre-proclamation controversies, and all such cases must first
be heard and decided by a Division of the Commission. The Commission
en banc does not have the authority to hear and decide it at the first
instance. x x x."
It seems to me, however, that Rules 3(3) and 27(9)(d) of the Comelec
Rules were not intended to establish a wall of separation between the
Divisions and the Commission En Banc. Thus, for instance, while election
cases properly so-called are designated as "ordinary actions" and assigned
to the Divisions, the Comelec Rules authorize the Commission itself to
intervene or act in such ordinary actions. For instance:
Page 11

"Rule 20 -- Election Protests

xxxxxxxxx
Sec. 6. Revision of ballots. -- When the allegations in a protest or counterprotest so warrant, or whenever in the opinion of the Commission or
Division the interest of justice so demands, it shall immediately order the
ballot boxes containing ballots and their keys, list of voters with voting
records, book of voters, and other documents used in the election to be
brought before the Commission, and shall order the revision of the ballots.
For this purpose, the Commission may constitute a committee on the
revision of ballots, to be composed of a chairman, who shall be a lawyer
from the Commission, and two members, one member and his substitute to
be proposed by the protestant, and the other member and his substitute by
the protestee.
The revision of the ballots shall be made in the office of the Clerk of Court
concerned at such places as the Commission or the Division shall
designate, and shall be completed within three (3) months from the date of
the order, unless otherwise directed by the Commission.
Sec. 7. Partial determination of the case. -- The Commission or the Division
concerned may direct the protestant and, in case there is a counter-protest,
the counter-protestant, to state and designate in writing his or their choice
of the precincts, numbering not more than twenty-five (25%) per centum of
the total number of precincts involved in the protest and counter-protest, if
any, whose ballot boxes shall first be opened, and shall thereafter make a
partial determination of the case x x x."
xxxxxxxxx
Rule 30 -- Injunction
Sec. 1. Preliminary Injunction. -- The Commission or any of its Divisions
may grant preliminary injunction in any ordinary action, special action,
Page 12

special case or special relief pending before it.

x x x x x x x x x."
(Underscoring supplied)
Another difficulty with the position taken by the majority is that under the
Comelec Rules, not all pre-proclamation controversies are necessarily
assigned to a Division. There are certain pre-proclamation controversies
which, under the Comelec Rules, are to be filed directly with the
Commission and to be heard and decided by the Commission En Banc:
"Rule 27 -- Pre-Proclamation Controversies
xxxxxxxxx
Sec. 4. Pre-proclamation controversies which may be filed directly with the
Commission. -- (a) The following pre-proclamation controversies may be
filed directly with the Commission:
(1) When the issue involves the illegal composition or proceedings of the
board of canvassers as when a majority or all the of the members do not
hold legal appointments or are in fact usurpers; or when the canvassing
has been a mere ceremony that was pre-determined and manipulated to
result in nothing but a sham as where there was convergence of
circumstances of precipitate canvassing, terrorism, lack of sufficient notice
to the members of the board of canvassers and disregard of manifest
irregularities on the facts of the questioned returns or certificates of
canvass in appropriate cases;
(2) When the issue involves the correction of manifest errors in the
tabulation or tallying of the results during the canvassing as where (1) a
copy of the election returns or certificate of canvass was tabulated more
than once, (2) two or more copies of the election returns of one precinct, or
two or more copies of certificate of canvass were tabulated separately, (3)
Page 13

there had been a mistake in the copying of the figures into the statement of
votes or into the certificate of canvass, or (4) so-called returns from nonexistent precincts were included in the canvass, but such errors could not
have been discovered during the canvassing despite the exercise of due
diligence and proclamation of the winning candidates had already been
made.
xxxxxxxxx
(d) The Clerk of Court concerned shall immediately set the petition for
hearing.
(e) The petition shall be heard and decided by the Commission en banc.
x x x x x x x x x."
(Underscoring supplied.
There is another factor which needs to be considered. The appeals of the
various petitioners in these cases from rulings of the several Boards of
Canvassers involved (whether municipal or provincial) were resolved by the
Commission directly. Since all the members of the Commission En Banc
2
(and therefore, all the members of each of the two
Divisions of the
Commission) were present when these cases were disposed of and
dismissed, it will be seen that, literally, the several appeals were heard by
all the members of a Division and at the same time by all the members of
the Commission En Banc. It may be seen then that the second sentence of
Article IX(C) (3) of the 1987 Constitution, quoted above, has been literally
and effectively complied with. To say, therefore, that the cases here
involved must first be decided by a Division and then only referred to the
Commission En Banc by a motion for reconsideration, appears to be an
exaltation of form over substance. The present situation must be
distinguished from a situation where a constitutional or statutory provision
requires a matter to be resolved by a Commission En Banc but is instead
resolved only by a Division of that Commission or body. In this latter
Page 14

situation, the decision of a Division of the Commission or other agency is

not reasonably to be equated with the decision of the Commission En
Banc; for the latter is necessarily composed of more commissioners than
constitute one division thereof.
Finally, assuming arguendo that the majority have correctly read Article
IX(C) (3) of the 1987 Constitution, it should still be pointed out that most, if
not all, of the cases or proceedings at bar, and the other seven hundred
(700) plus cases or proceedings which the Commission En Banc summarily
and similarly disposed of, are not even genuine pre-proclamation
controversies. Only certain statutorily defined grounds or issues may be
raised in a pre-proclamation controversy. In the case(s) at bar, the grounds
or issues sought to be raised by the individual petitioners are so
insubstantial in nature as to fall considerably short of a genuine preproclamation controversy. Indeed, in most if not all of the cases at bar, the
grounds raised and the evidence submitted are so slight and tenuous as to
lead to the belief that they were initiated for no more edifying reason than to
delay the proclamation of the winners (per canvassing) in the elections
sought to be disputed. Had the Commission En Banc taken seriously
(undeservedly, in my view) the seven hundred (700) plus proceedings
before it and required each to be heard first by Division and then by the
Commission En Banc on a motion for reconsideration, several years would
doubtless have been required to dispose of all those proceedings, had
Section 16 of R.A. No. 7166 not been enacted.
My ultimate submission is that we must read the second sentence of Article
IX(C) (3) of the 1987 Constitution in such a manner as to avoid handcuffing,
as it were, the Comelec and denying it the essential flexibility it badly needs
to be able to carry out the basic constitutional mandate of "expedit[ing]
disposition of election [protests and] pre-proclamation controversies." This
teleological or purpose-oriented reading may be achieved by regarding that
second sentence as directory and not mandatory (or jurisdictional) in
character. The legal distinction between directory and mandatory provisions
3
is as applicable to fundamental as it is to statutory laws.
The
characterization of a constitutional or statutory provision as directory rather
Page 15

than mandatory is not determined simply by the particular grammatical

terms employed; indeed, the problem of distinguishing between directory
and mandatory language would not arise if the use of "will" or "shall"
instead of "may" were regarded as conclusive. That characterization is
most rationally made on the basis of the major purpose or objective which
shines through the constitutional language and which must be given effect.
Alternatively, the second sentence of Article IX(C) (3) of the 1987
Constitution may be read, without departing from the literal terms used in
that provision, as encompassing only election cases properly so called, i.e.,
election protests, and not pre-proclamation controversies.
For all the foregoing, I reach the conclusion that the Commission En Banc
did not act with grave abuse of discretion nor without or in excess of
jurisdiction in dismissing the alleged pre-proclamation controversies at bar,
without first requiring each and everyone of them to be heard in Division.
1

E.g., Lindo v. Commission on Elections, 194 SCRA 25 (1991); Fecundo

v. Berjamen, 180 SCRA 235 (1989).
2

E.g., Dimaporo v. Commission on Elections, 186 SCRA 769 (1990);

Abella v. Larrazabal, 180 SCRA 509 (1989); Sanchez v. Commission on
Elections, 153 SCRA 67 (1987); Bautista v. Commission on Elections, G.R.
No. 78994, 10 March 1988; Dipatuan v. Commission on Elections, 185
SCRA 86 (1990). See also Section 18, R.A. No. 7166.
3

Marcelino v. Cruz, Jr., 121 SCRA 51 (1983). In this case, our Court
interpreted Article X(11) (1) of the 1973 Constitution relating to the periods
within which cases must be resolved by this Court and other courts to be
directory, not mandatory or jurisdictional, because, among other things, it
referred to "matters merely procedural." The Court also said: "
[c]onstitutional provisions are to be construed as mandatory, unless by
express provision or necessary implication, a different intention is manifest.
The difference between mandatory and directory provisions is often
determined on grounds of expediency, the reason being that less injury
Page 16

results to the general public by disregarding than by enforcing the letter of

the law." (121 SCRA at 56; citations omitted)
See, e.g., Mikell v. Philadelphia School District, 4 ALR 2d 962 (1948);
Albemarle Oil and Gas Co. v. Morris, 121 S.E. 60 (1924), both of which
deal with state constitutional provisions.

Page 17