Sevilla vs. Commission on Elections and So

An equally divided 3-3 vote of the COMELEC en banc is not the majority vote of all members required by Section 7, Article IX-A of the Constitution and Section 5(a), Rule 3 of the COMELEC Rules of Procedure, has no legal effect, and triggers mandatory rehearing under Section 6, Rule 18 of the COMELEC Rules of Procedure.

Mamerto T. Sevilla, Jr. and Renato R. So were rival candidates for Punong Barangay of Barangay Sucat, Muntinlupa City in the October 25, 2010 Barangay and Sangguniang Kabataan Elections. Election protests from that contest are governed by A.M. No. 07-04-15-SC, while COMELEC en banc dispositions are governed by the constitutional command that each Commission decide by majority vote of all its members and by the COMELEC Rules of Procedure on quorum, votes required, and procedure when opinion is equally divided.

Sevilla and So contested the position of Punong Barangay of Barangay Sucat, Muntinlupa City in the October 25, 2010 Barangay and Sangguniang Kabataan Elections. On October 26, 2010, the Board of Election Tellers proclaimed Sevilla the winner with 7,354 votes against So's 6,726 votes, a margin of 628 votes. On November 4, 2010, So filed an election protest with the Metropolitan Trial Court alleging electoral fraud, anomalies and irregularities in all protested precincts, pinpointing twenty percent thereof as pilot precincts and praying for manual revision of ballots.

Following recount of the ballots in the pilot protested precincts, the MeTC issued its Order dated May 4, 2011 dismissing the protest. Instead of filing a notice of appeal and paying the appeal fee within the reglementary period, So filed a motion for reconsideration on May 9, 2011, which the MeTC denied on May 17, 2011 as a prohibited pleading pursuant to Section 1, Rule 6 of A.M. No. 07-04-15-SC. Thereafter, on May 31, 2011, So filed a petition for certiorari with the COMELEC, faulting the MeTC judge for non-observance of the rule requiring clear and distinct presentation of how and why groups of ballots should be considered written by one or two persons.

In its May 14, 2012 Resolution, the COMELEC Second Division granted the petition, characterizing the dismissal order as an oppressive exercise of judicial authority and as fraught with infirmities for appreciating ballots in general terms regarding strokes, slant, spacing, size, indentation and variance in writing. On reconsideration, the COMELEC en banc issued its October 6, 2012 Resolution denying the motion, directing another revision of contested ballots, and finding grave abuse of discretion in non-compliance with Section 2(d), Rule 14 of A.M. No. 07-4-15-SC and failure to examine Minutes of Voting and Counting for illiterate or assisted voters, with three Commissioners concurring and three dissenting while the seventh Commission seat was vacant. On November 13, 2012, the Supreme Court ordered maintenance of the status quo ante pending resolution of Sevilla's certiorari petition.

• Jurisdiction and Finality: Petitioner argued that the COMELEC gravely abused its discretion in entertaining So's petition after the MeTC dismissal had become final and executory, So having filed a prohibited motion for reconsideration instead of an appeal within five days with payment of the appeal fee, which did not toll the period to appeal.
• Certiorari Not a Substitute for Appeal: Petitioner maintained that certiorari could not be given due course as a substitute for a lost appeal, being available only where there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law.
• Propriety of Dismissal and Liberal Construction: Petitioner argued that no grave abuse attended the dismissal since the MeTC judge complied with the rules through clear, specific and detailed explanations of strokes, figures or letters showing ballots written by one person; that mere error of judgment is not grave abuse; and that liberality cannot excuse a petition offering no explanation for non-observance of rules.

• Prematurity and Absence of Majority Decision: Respondent countered that the petition was prematurely filed because the October 6, 2012 COMELEC en banc Resolution was not a majority decision, with three Commissioners voting to deny reconsideration and three voting to grant, deliberated upon by only six Commissioners as the seventh had not yet been appointed by the President.
• Remand for Rehearing: Respondent argued that the petition should be dismissed so the case could be remanded to the COMELEC for rehearing by a full and complete Commission.

• Majority Vote and Legal Effect: Whether the October 6, 2012 COMELEC en banc Resolution, adopted by a 3-3 vote, constitutes a valid majority decision with legal effect under the Constitution and COMELEC Rules of Procedure.
• Equally Divided Opinion and Rehearing: Whether the case must be remanded to the COMELEC en banc for the rehearing mandated when opinion is equally divided or the necessary majority cannot be had.
• Prematurity of Supreme Court Petition: Whether Sevilla's petition for certiorari was prematurely filed and must therefore be dismissed.

• Majority Vote and Legal Effect: No. The 3-3 vote falls short of the required concurrence of a majority of all members, or four votes, and for all intents and purposes has no legal effect except to show failure to reach a decision.
• Equally Divided Opinion and Rehearing: Yes. When the Commission en banc is equally divided, Section 6, Rule 18 mandates rehearing with opportunity for the parties to strengthen positions before a new vote.
• Prematurity of Supreme Court Petition: Yes. Absent a valid en banc decision, review is premature, warranting dismissal without reaching the merits of the ballot appreciation and certiorari-versus-appeal questions.

• Majority Vote and Legal Effect: Section 7, Article IX-A requires each Commission to decide by majority vote of all its members, implemented by Section 5(a), Rule 3 requiring concurrence of a majority of Members for any en banc pronouncement. Applied here, four votes were always necessary irrespective of attendance, as confirmed in Marcoleta vs. Commission on Elections that majority means majority of all members, not only those participating. With three votes to affirm the Second Division and three to overturn, neither side obtained four votes, so the October 6, 2012 Resolution sustained nothing and overturned nothing.
• Equally Divided Opinion and Rehearing: Section 6, Rule 18 provides that when the Commission en banc is equally divided or the necessary majority cannot be had, the case shall be reheard, with dismissal or affirmance consequences only if no decision is reached on rehearing. Juliano vs. Commission on Elections and Marcoleta vs. Commission on Elections require such rehearing, defined as second consideration with notice and opportunity for parties to present additional evidence and amplify arguments, not mere re-consultation among members as in Juliano or mere record of votes as in Marcoleta. No rehearing order appears to have issued, apparently due to the interim filing of the present petition, so remand for compliance with utmost dispatch was ordered following the same course taken in Juliano and Marcoleta.
• Prematurity of Supreme Court Petition: Because the en banc Resolution lacked legal effect and further action through rehearing remained required, no final reviewable en banc disposition existed. The petition was thus premature, warranting dismissal and remand without resolving Sevilla's claims on finality, prohibited pleading, certiorari as substitute for appeal, or correctness of ballot appreciation.

• Majority vote of all members for COMELEC en banc decisions — Section 7, Article IX-A of the Constitution and Section 5(a), Rule 3 of the COMELEC Rules of Procedure require the concurrence of a majority of all members of the Commission, meaning four votes, for the valid pronouncement of any decision, resolution, order or ruling when sitting en banc, irrespective of the number of Commissioners in attendance. The requirement was applied to nullify legal effect of the 3-3 October 6, 2012 Resolution, which was treated as a mere record of votes showing failure to decide.
• Rehearing upon equally divided opinion — Under Section 6, Rule 18 of the COMELEC Rules of Procedure, when the Commission en banc is equally divided in opinion or the necessary majority cannot be had, the case shall be reheard, with the parties afforded fair and reasonable opportunity to explain their side, present additional evidence if any, and clarify and amplify arguments to convince members of the merit of their case. The rule was applied to require remand, distinguishing rehearing with party participation from mere re-consultation or re-evaluation by tribunal members alone, and noting that only if no decision is reached on rehearing do the default consequences for original, appealed, or incidental matters apply.

• "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." — States the constitutional yardstick under Section 7, Article IX-A applied to invalidate the 3-3 en banc pronouncement.
• "The concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution, order or ruling." — Quotes Section 5(a), Rule 3 of the COMELEC Rules of Procedure implementing the constitutional majority-of-all-members rule requiring four votes.
• "When the Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied." — Provides the complete rehearing procedure mandating remand rather than Supreme Court resolution on the merits.
• "A rehearing clearly presupposes the participation of the opposing parties for the purpose of presenting additional evidence, if any, and further clarifying and amplifying their arguments." — Defines rehearing as distinct from re-consultation and justifies giving parties anew the opportunity to persuade the en banc.

• Marcoleta vs. Commission on Elections, G.R. Nos. 181377 and 181726, April 24, 2009, 586 SCRA 765 — Followed as controlling on the meaning of majority vote as majority of all members and on the propriety of ordering rehearing where the en banc resolution was a mere record of votes lacking legal effect.
• Juliano vs. COMELEC, 521 Phil. 395 (2006) — Followed to hold that failure to order the Section 6, Rule 18 rehearing after an equally divided 3-3 vote with one abstention constitutes grave abuse of discretion, and to distinguish rehearing with party participation from mere re-consultation.
• Belac vs. Comelec — Cited as the proper procedural model where, upon equal division, the en banc set the case for hearing and allowed memoranda before voting anew.
• Samalio vs. Court of Appeals — Cited for the proposition that a formal or trial-type hearing is not always essential, requirements being satisfied where parties are afforded fair and reasonable opportunity to explain their side.

• Section 7, Article IX-A, Constitution — Requires each Constitutional Commission to decide by majority vote of all its members; applied to hold that four COMELEC votes were necessary and the 3-3 Resolution had no legal effect.
• Section 5(a), Rule 3, COMELEC Rules of Procedure — Requires four members for en banc quorum and concurrence of a majority of Members for any pronouncement; applied as implementation of the constitutional majority rule.
• Section 6, Rule 18, COMELEC Rules of Procedure — Mandates rehearing when en banc opinion is equally divided or necessary majority cannot be had, with specified defaults only after rehearing fails; applied to order remand for rehearing with utmost dispatch.
• Section 1, Rule 6, A.M. No. 07-04-15-SC — Prohibits motion for reconsideration as invoked by the MeTC to deny So's motion from the dismissal order; noted as part of the underlying procedural dispute not reached on the merits due to prematurity.
• Section 2(d), Rule 14, A.M. No. 07-4-15-SC — Prescribes mandatory form of decision in election protests involving pairs or groups of ballots written by two persons and examination of Minutes of Voting and Counting; invoked by the COMELEC en banc majority reasoning noted in the decision but not resolved by the Supreme Court.

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe, and Leonen, JJ., concur.