RODULFO SARMIENTO, PETITIONER, VS. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CAN­VASSERS OF VIRAC AND JOSE “CITO” ALBERTO II, RESPONDENTS.

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 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 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 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:

“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:

“Rule 20 — Election Protests

                                                         x x x                                         x x x                                    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 x x x.”

x
x x                                      x x x                                      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                                     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

x x x                                     x
x x                                      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:

(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.

x x x                                        x
x x                                      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                                       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 (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.

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.

^[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.