10/29/25, 1:16 AM Cayetano vs.

Commission on Elections

Title
Cayetano vs. Commission on Elections

Case Decision Date

G.R. No. 193846 Apr 12, 2011

2010 Taguig mayoral election protest dismissed; SC ruled no jurisdiction over COMELEC
Division's interlocutory orders, no grave abuse of discretion found.

EN BANC

[ G.R. No. 193846, April 12, 2011 ]

MARIA LAARNI L. CAYETANO, PETITIONER, VS. THE COMMISSION ON ELECTIONS AND

DANTE O. TINGA, RESPONDENTS.

RESOLUTION

NACHURA, J.:

Before us is a petition for certiorari under Rule 64, in relation to Rule 65 of the Rules of
Court, assailing the Orders issued by public respondent Commission on Elections
(COMELEC), through its Second Division, dated August 23, 20101 and September 7, 2010,2
respectively. The two Orders were issued in relation to the election protest, docketed as
EPC No. 2010-44, filed by private respondent Dante O. Tinga against petitioner Maria Laarni
Cayetano.

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

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

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

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

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

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

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

2. DIRECTS [petitioner] to make a cash deposit of TWO MILLION EIGHT HUNDRED

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

3. DIRECTS the City Election Officer (EO) of Taguig City, to gather and collect the subject
contested ballot boxes containing the ballots, and their keys from the City Treasurer of
Taguig City and to deliver the same to ECAD, COMELEC, Intramuros, Manila, within fifteen

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(15) days from receipt of the ballot boxes from said Treasurer with prior notice to herein
parties who may wish to send their respective duly authorized representatives to
accompany the same, observing strict measures to protect the safety and integrity of the
ballot boxes;

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

5. AUTHORIZES the City Election Officer to secure a sufficient number of security

personnel either from the PNP or the AFP in connection with the afore-directed gathering
and transportation of the subject ballot boxes;

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

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

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

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

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

The Preliminary Conference is hereby ordered terminated. The parties are given three (3)
days from receipt hereof to file their comment, suggestions or corrections, if any, to this
Preliminary Conference Order. After the lapse of said period, no more comment,
suggestion or correction shall be entertained, and this Preliminary Conference Order shall
thereafter be valid and binding upon the parties.3
Thereafter, on August 31, 2010, petitioner filed a Motion for Reconsideration of the
Preliminary Conference Order relative to the denial of her affirmative defenses. Private
respondent filed a Comment and Opposition thereto. Consequently, the COMELEC issued
the second assailed Order dated September 7, 2010, denying petitioner's Motion for
Reconsideration.

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

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

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

We cannot subscribe to petitioner's proposition. The landmark case of Repol, as affirmed in

the subsequent cases of Soriano, Jr. v. COMELEC6 and Blanco v. COMELEC,7 leaves no
room for equivocation.

Reviewing well-settled jurisprudence on the power of this Court to review an order,

whether final or interlocutory, or final resolution of a division of the COMELEC, Soriano
definitively ruled, thus:

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

"Only final orders of the COMELEC in Division may be raised before the COMELEC en
banc. Section 3, Article IX-C of the 1987 Constitution mandates that only motions for
reconsideration of final decisions shall be decided by the COMELEC en banc, thus:

SEC. 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases,
including pre-proclamation controversies. All such election cases shall be heard and
decided in Division, provided that motions for reconsideration of decisions shall be
decided by the Commission en banc. (Emphasis supplied.)

Under this constitutional provision, the COMELEC en banc shall decide motions for
reconsideration only of "decisions" of a Division, meaning those acts having a final
character. Clearly, the assailed status quo ante Order, being interlocutory, should first be
resolved by the COMELEC First Division via a motion for reconsideration.

Furthermore, the present controversy does not fall under any of the instances over which
the COMELEC en banc can take cognizance of the case. Section 2, Rule 3 of the 1993
COMELEC Rules of Procedure provides:

SEC. 2. The Commission En Banc. -- The Commission shall sit en banc in cases hereinafter
specifically provided, or in pre-proclamation cases upon a vote of a majority of the
members of the Commission, or in all other cases where a division is not authorized to act,
or where, upon a unanimous vote of all the Members of a Division, an interlocutory matter

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or issue relative to an action or proceeding before it is decided to be referred to the

Commission en banc.

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

We held in Ambil, Jr. v. Commission on Elections that --

Under the existing Constitutional scheme, a party to an election case within the jurisdiction
of the COMELEC in division [cannot] dispense with the filing of a motion for
reconsideration of a decision, resolution or final order of the Division of the Commission
on Elections because the case would not reach the Comelec en banc without such motion
for reconsideration having been filed x x x.

Repol went directly to the Supreme Court from an interlocutory order of the COMELEC
First Division. Section 7, Article IX of the 1987 Constitution prescribes the power of the
Supreme Court to review decisions of the COMELEC, as follows:

Section 7. Each commission shall decide by a majority vote of all its members any case or
matter brought before it within sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or resolution upon the filing
of the last pleading, brief, or memorandum required by the rules of the commission or by
the commission itself. Unless otherwise provided by this constitution or by law, any
decision, order, or ruling of each commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

We have interpreted this constitutional provision to mean final orders, rulings and
decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial
powers. The decision must be a final decision or resolution of the COMELEC en banc. The
Supreme Court has no power to review via certiorari an interlocutory order or even a final
resolution of a Division of the COMELEC. Failure to abide by this procedural requirement
constitutes a ground for dismissal of the petition. (Emphasis supplied.)

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

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stated --

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

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

...

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

This Court has already ruled in Reyes v. RTC of Oriental Mindoro, that "it is the decision,
order or ruling of the COMELEC En Banc that, in accordance with Section 7, Art. IX-A of the

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Constitution, may be brought to the Supreme Court on certiorari." The exception provided
in Kho and Repol is unavailing in this case because unlike in Kho and Repol, the assailed
interlocutory orders of the COMELEC First Division in this case are not a patent nullity. The
assailed orders in this case involve the interpretation of the COMELEC Rules of Procedure.
Neither will the Rosal case apply because in that case the petition for certiorari questioning
the interlocutory orders of the COMELEC Second Division and the petition for certiorari
and prohibition assailing the Resolution of the COMELEC En Banc on the main case were
already consolidated.8
Plainly, from the foregoing, the Court has no jurisdiction to review an order, whether final
or interlocutory, even a final resolution of a division of the COMELEC. Stated otherwise, the
Court can only review via certiorari a decision, order, or ruling of the COMELEC en banc in
accordance with Section 7, Article IX-A of the Constitution.

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

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

Finally, certiorari will not lie in this case.

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

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

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remain pending before the COMELEC, which should afford petitioner ample opportunity to
ventilate her grievances. Thereafter, the COMELEC should decide these cases with
dispatch.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

SO ORDERED.

Corona, C.J., no part.

Carpio, Carpio Morales, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del
Castillo, Abad, Villarama, Jr., Perez, Mendoza, and Sereno, JJ., concur.

1 Rollo, pp. 32-43.

2 Id. at 44.

3 Supra note 1, at 41-43.

4 Section 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.

5 G.R. No. 161418, April 28, 2004, 428 SCRA 321.

6 G.R. Nos. 164496-505, April 2, 2007, 520 SCRA 88.

7 G.R. No. 180164, June 17, 2008, 554 SCRA 755.

8 Soriano, Jr. v. COMELEC, supra note 6, at 102-107. (Emphasis supplied, citations omitted.)

9 Kho v. COMELEC, 344 Phil. 878, 886 (1997).

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10 See RULES OF COURT, Rule 65, Sec. 1.

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