EN BANC

[G.R. No. 105628. August 6, 1992.]

RODULFO SARMIENTO, Petitioner, v. 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, v. 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, v. COMMISSION ON

ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF
CATANDUANES and ROSALIE ALBERTO-ESTACIO, Respondents.

[G.R. No. 105730. August 6, 1992.]

JESUS TYPOCO , JR., Petitioner, v. 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, v. 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, v. 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, v. COMMISSION ON ELECTIONS,

PROVINCIAL BOARD OF CANVASSERS OF DAVAO ORIENTAL and
ROSALIND YBASCO LOPEZ, Respondents.

[G.R. No. 105919. August 6, 1992.]

DATU MOHAMMAD A. SINSUAT, Petitioner, v. COMMISSION ON

ELECTIONS, DATU MICHAEL SINSUAT and ATTY. RUBEN
PLATON, Respondents.

[G.R. No. 105977. August 6, 1992.]

ROSARIO A. VELASCO, Petitioner, v. COMMISSION ON ELECTIONS,

MUNICIPAL BOARD OF CANVASSERS OF TERNATE, CAVITE, and
CONDRADO LINDO, Respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; SECTION 3,

SUBDIVISION C, ARTICLE IX OF THE 1987 CONSTITUTION; ELECTION
CASES INCLUDING PRE-PROCLAMATION CONTROVERSIES MUST
FIRST BE HEARD AND DECIDED IN DIVISION; COMMISSION EN BANC
WITHOUT AUTHORITY TO HEAR AND DECIDE CASES AT THE FIRST
INSTANCE. — 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." 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.

2. ID.; ID.; ID.; COMELEC RULES OF PROCEDURE; PRE-PROCLAMATION

CASES CLASSIFIED AS SPECIAL CASES; SPECIAL CASES AND APPEALS
FROM RULINGS OF BOARD OF CANVASSERS COGNIZABLE
EXCLUSIVELY BY DIVISIONS; MOTION TO RECONSIDER DECISION OR
RESOLUTION OF DIVISION COGNIZABLE BY COMMISSION EN BANC.
— In the COMELEC RULES OF 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 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: "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.." . . A motion to reconsider the decision
or resolution of the Division concerned 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 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
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.

3. ID.; ID.; ID.; SECTION 16, REPUBLIC ACT NO. 7166; PRE-
PROCLAMATION CASES PENDING BEFORE THE COMMISSION DEEMED
TERMINATED AT THE BEGINNING OF TERM OF OFFICE INVOLVED. —
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: . . . "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 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.

CRUZ, J., separate opinion:chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; SECTION 3,

SUBDIVISION C, ARTICLE IX OF THE 1987 CONSTITUTION;
JURISDICTIONAL AND NOT MERELY DIRECTORY; ALL ELECTION
CASES HEARD FIRST BY DIVISION; DECISION OF DIVISION
RECONSIDERED ONLY BY COMMISSION EN BANC. — 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
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.

FELICIANO, J., concurring and dissenting:chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; SECTION 2,

SUBDIVISION C, ARTICLE IX OF THE 1987 CONSTITUTION; POWERS
AND FUNCTIONS EXERCISED BY COMMISSION EN BANC NOT
DISTINGUISHED FROM THOSE EXERCISED BY DIVISIONS. — 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.

2. ID.; ID.; SECTION 3, SUBDIVISION C, ARTICLE IX OF THE 1987

CONSTITUTION; FUNDAMENTAL OBJECTIVE OF THE ARTICLE. — 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 protests as rapidly as possible. We have
also many times ruled that pre-proclamation controversies are administrative and
summary in character and are to be resolved with the utmost dispatch subject, of
course, to the requirements of notice to the parties and fairness in procedure.

3. ID.; ID.; ID.; TERM "ELECTION CASES" REFERS ONLY TO ELECTION

CONTESTS OR ELECTION PROTESTS AND NOT TO PRE-
PROCLAMATION CONTROVERSIES. — 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 cases
properly so-called with pre-proclamation controversies.

4. ID.; ID.; ID.; COMELEC RULES OF PROCEDURE; NOT INTENDED TO

ESTABLISH WALL OF SEPARATION BETWEEN COMMISSION EN BANC
AND DIVISIONS; COMMISSION EN BANC AUTHORIZED TO INTERVENE
OR ACT IN ORDINARY ACTIONS ASSIGNED TO DIVISIONS. — 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: "Rule
20 — Election Protests . . . Sec. 6. Revision of ballots. — When the allegations in a
protest or counter-protest 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 . . ." Rule 30 — Injunction Sec. 1. Preliminary Injunction. — The
Commission or any of its Divisions may grant preliminary injunction in any
ordinary action, special action, special case or special relief pending before it.

5. ID.; ID.; ID.; ID.; CERTAIN PRE-PROCLAMATION CONTROVERSIES

ALLOWED TO BE FILED DIRECTLY WITH THE COMMISSION EN BANC.
— 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
. . . 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) 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 non-existent 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. . . .
(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.

6. ID.; ID.; ID.; SECOND SENTENCE OF ARTICLE IX (C)(3) OF THE 1987

CONSTITUTION HAS BEEN LITERALLY AND EFFECTIVELY COMPLIED
WITH IN THE CASES AT BAR. — 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 (and therefore, all the members of each of the two [2] 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 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.

7. ID.; ID.; ID.; CASES AT BAR NOT GENUINE PRE-PROCLAMATION

CONTROVERSIES. — 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 pre-proclamation 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.

8. ID.; ID.; ID.; SECOND SENTENCE OF ARTICLE IX (C)(3) OF THE 1987

CONSTITUTION BE REGARDED AS DIRECTORY AND NOT
MANDATORY IN CHARACTER TO ENABLE COMELEC TO CARRY OUT
ITS CONSTITUTIONAL MANDATE WITH FLEXIBILITY. — 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 is as applicable to fundamental as it is to
statutory laws. The characterization of a constitutional or statutory provision as
directory rather 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.

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):chanrob1es
virtual 1aw library

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 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;chanrobles virtual lawlibrary

6) G.R. No. 105778 — SPC No. 92-039 dismissing said case for non-compliance
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 pre-proclamation
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.

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:jgc:chanrobles.com.ph

"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:jgc:chanrobles.com.ph

"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. . .
."cralaw virtua1aw library

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 PROCEDURE, pre-proclamation cases are classified as
Special Case 1 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
decide these Special Cases. 2 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:jgc:chanrobles.com.ph
"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.chanrobles law library : red

(d) The Division to which the case is assigned shall immediately set the case for
hearing." (Emphasis supplied)
x x x

A motion to reconsider the decision or resolution of the Division concerned may be

filed within five (5) days from its promulgation. 3 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 shall certify the case to the
Commission en banc. 4 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 certification. 5

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 would, logically,
be in order. However, Section 16 of R.A No. 7166 6 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:chanrob1es
virtual 1aw library
x x x
"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."cralaw virtua1aw
library

The terms of the offices involved in the Special Cases subject of these petitions
commenced at noon of 30 June 1992. 7 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, Griño-Aquino, Medialdea, Regalado,

Romero, Nocon and Bellosillo, JJ., concur.

Separate Opinions

CRUZ, J., concurring:chanrob1es virtual 1aw library

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:chanrob1es virtual 1aw library
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.

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.chanrobles virtual lawlibrary

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.

FELICIANO, J., concurring and dissenting:chanrob1es virtual 1aw library

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
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 and void and setting the same aside.

Article IX (C) (3) of the 1987 Constitution reads as follows:jgc:chanrobles.com.ph

"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."cralaw virtua1aw library

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.cralawnad

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 protests as rapidly as possible. 1
We have also many times ruled that pre-proclamation controversies are
administrative and summary in character and are to be resolved with the utmost
dispatch subject, of course, to the requirements of notice to the parties and fairness
in procedure. 2

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 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:jgc:chanrobles.com.ph

"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," (Emphasis 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."cralaw virtua1aw library

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:chanrobles virtual lawlibrary

" [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. . . . ."cralaw virtua1aw
library

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:jgc:chanrobles.com.ph

"Rule 20 — Election Protests

x x x

Sec. 6. Revision of ballots. — When the allegations in a protest or counter-protest

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 . . . ."cralaw virtua1aw library

x x x

Rule 30 — Injunction

Sec. 1. Preliminary Injunction. — The Commission or any of its Divisions may

grant preliminary injunction in any ordinary action, special action, special case or
special relief pending before it.

x x x

(Emphasis 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:jgc:chanrobles.com.ph

"Rule 27 — Pre-Proclamation Controversies

x x x

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:chanrob1es virtual 1aw library

(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:chanrob1es virtual 1aw library

(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) 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 non-existent 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.chanrobles.com:cralaw:red

x x x

(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

(Emphasis 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 (and therefore, all the
members of each of the two [2] 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 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
pre-proclamation 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.chanroblesvirtualawlibrary

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 is as applicable to fundamental as it is
to statutory laws. 3 The characterization of a constitutional or statutory provision
as directory rather 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.

Endnotes:

1. Section 4 (h), Rule 1.

2. Section 3, Rule 3.

3. Section 2, Rule 19.

4. Section 5, Rule 19.

5. Section 6, Id.

6. 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.

FELICIANO, J., concurring and dissenting:chanrob1es virtual 1aw library

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 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.