JOSE M. BULAONG, M.D., PETITIONER, VS. COMELEC, FIRST DIVISION, AND LUIS VILLAFUERTE, RESPONDENTS.

Petitioner Jose M. Bulaong, M. D. and private respondent Luis
Villafuerte were both candidates for the office of the provincial governor of
Camarines Sur in the May 11,1992 local elections. Petitioner, having obtained a total of 184,654 votes as against
private respondent’s vote of 155,359 or a difference of 29,295 votes, was
proclaimed by the Provincial Board of Canvassers as the duly elected governor
on June 30, 1992. Accordingly,
petitioner took his oath of office on July 1, 1992.

On July 9, 1992, private respondent filed an election protest
questioning the precinct results of ten (10) Municipalities of Baao, Buhi,
Cabusao, Calabanga, Libmanan, Pamplona, Pasacao, Pili, San Fernando and Sipocot
and the City of Iriga. Subsequently, on
August 21, 1992, private respondent filed an Omnibus Motion praying that the
venue for the ballot revision proceedings be conducted at the main office of
the Commission on Elections in Intramuros, Manila.^[1]
Petitioner opposed private respondent’s prayer citing that ballot revision
proceedings need not be held in Manila since there was no untoward incident
that happened during the canvassing of votes from May 12 to May 30, 1992 in
Naga City.

Acting on private respondent’s prayer, the First Division of the
COMELEC through its order dated September 9, 1992 granted private respondent’s
prayer for a revision of ballots to be held in Manila.^[2] This
order was received by petitioner on September 16, 1992.

On September 21, 1992, petitioner, fearing that his motion for
reconsideration might not be finished on time, filed an “Urgent Motion for
One-Day Extension.”^[3] A day
after or on September 22, 1992, petitioner filed his motion for reconsideration
dated September 21, 1992.^[4]

There being no resolution yet on his motion for extension,
petitioner then filed a “Supplement to Urgent Motion for One-day
Extension,” on October 6, 1992.^[5]

On October 12, 1992, petitioner received his copy of the
COMELEC’s order dated October 6, 1992 denying petitioner’s urgent motion for
one day extension.^[6]
On October 14, 1992, petitioner moved to reconsider.^[7]

On October 19, 1992, the COMELEC thru its First Division denied
petitioner’s motion for reconsideration dated September 21,1992.^[8]
On the same day, petitioner also filed an Omnibus motion praying that his two
motions for reconsideration (Annexes G and J) be certified to the COMELEC en
banc pursuant to Section 5 of Rule 19 of the COMELEC Rules of
Procedure.^[9]

On October 30, 1992, petitioner filed with the COMELEC en
banc a manifestation and motion praying that his motions for
reconsideration^[10]
and his Omnibus Motion^[11]
filed with the First Division be ordered certified to it for resolution.^[12]
On December 3, 1992, the First Division of the COMELEC denied petitioner’s
manifestation that its motions for reconsiderations be certified to the COMELEC
en banc because the order directing the
Provincial Election Supervisor of Camarines Sur to immediately send the 649
ballot boxes to Manila is merely interlocutory.^[13]

Hence, this instant petition for certiorari and mandamus with
prayer for a temporary restraining order to enjoin the order of the First
Division of the COMELEC dated September 9, 1992. On December 14, 1992, this Court issued a temporary restraining
order against public respondent.

On January 26, 1992, Marito Bernales, a candidate for the
position of provincial board member in Camarines Sur, filed a motion for
intervention alleging that the temporary restraining order we issued has affected the outcome of his electoral protest with
the COMELEC (EPC 92-38), his votes being in the same contested ballots
subject of the revision proceedings in the case at bar. We granted movant’s motion to intervene in
our resolution dated February 9, 1992.

The issue at hand is whether or not the First Division of the COMELEC committed grave abuse of discretion when it refused to refer petitioner’s motions for
reconsideration^[14]
to the COMELEC en
banc notwithstanding mandate of Section 5 of Rule 19 of the COMELEC Rules of Procedure (COMELEC Rules) which provides that:

“How motion for reconsideration
disposed of. – Upon the filing of a motion to reconsider a decision,
resolution, order or ruling of a Division, the Clerk of Court concerned shall
within twenty four (24) hours from the filing thereof, notify the Presiding
Commissioner. The latter shall within
two (2) days thereafter, certify the
case to the Commission en banc.”

While petitioner concedes that the order
of the COMELEC designating
Manila as the venue of the revision proceedings dated September 9, 1992 intertoculory, petitioner
nonetheless contends that a reading of Section 2 of Rule 3^[15]
in conjunction with Section 5 (c) of the same rule^[16]
would reveal that it is the duty of the First Division of the COMELEC to refer
his motion for reconsideration to the COMELEC en banc, since the matter concerning the venue of the revision of
ballots is a substantial issue which the latter should review.^[17]

Petitioner prays that a writ of mandamus be issued directing the
First Division of the COMELEC to certify and elevate his motions for
reconsideration to the COMELEC en banc.

We
vote to dismiss the instant petition. It is not mandatory on the part of a division of the COMELEC to refer
all pending motions for reconsiderations to the COMELEC en banc.

Admittedly, the order regarding the revision of ballots is an
interlocutory order because it still requires a party to perform certain acts
leading to the final adjudication of a case.^[18] The
order in the case at bar is for the Provincial Election Supervisor of Camarines
Sur to transfer the ballot boxes from Camarines Sur to Manila for a recount and
revision of ballots, for the purpose of determining who won the gubernatorial
race in Camarines Sur.

Being an interlocutory matter, the question now before us is whether or not the First
Division of the COMELEC committed
grave abuse of discretion in refusing to refer petitioner’s motion for
reconsideration to the COMELEC en
banc. It is our opinion that
the COMELEC did not commit grave
abuse of discretion. For said motion to
be considered en banc, it requires the unanimous vote of
the members of the division as mandated by Section 2 of Rule 3 of the COMELEC Rules. In the case at bar, there was an absence of
such vote. Instead of withholding its
decision on such interlocutory matter, the First Division of the COMELEC decided to exercise its power
under Section 6 of Rule 20 of the COMELEC
Rules which states:

“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. xxx

The revision of ballots
shall be made in the office of
the Clerk of Court concerned or at
such places as the Commission or Division
shall designate, and shall be completed within three (3) months
from the date of the order, unless otherwise directed by the Commission.”
(Underscoring provided)

Similarly, a mandamus proceeding involving a discretionary power
of the COMELEC does not lie. A perusal
of the aforecited section impliedly reveals the discretionary power of the
COMELEC Division or En Banc to order a revision of ballots. This can be gleaned from the use of the
phrase, “whenever in the opinion of
the Commission or Division the interest of justice so demand.” Although in
most instances the revision of ballots takes place in the office of the Clerk
or Court concerned, revision of ballots may also be held in “such places
as the Commission or Division shall designate.” Petitioner is to be
reminded that mandamus, as a remedy, is available to compel the doing of an act
specifically enjoined by law as a duty. It cannot compel the doing of an act involving the exercise of
discretion one way or the other.^[19]
Undoubtedly, the First Division of the COMELEC was within its powers in
designating Manila as the venue of the revision of ballots.

Even if we are to consider the case at bar as falling within the
jurisdiction of the COMELEC en banc by virtue of Section 3 of Rule 5(c)
of the COMELEC Rules, it goes without saying that only motions for
reconsideration filed within the five (5) day reglementary period as prescribed
by Section 2 of Rule 19^[20] of
said Rules can be referred to the COMELEC en banc. Petitioner
should have filed his motion for reconsideration on or before September 21,
1992 considering that he received the COMELEC’s order dated September 9, 1992
on September 16, 1992. Petitioner may
have been overly optimistic in expecting that his “urgent motion for
one-day extension” would be granted forthwith by the First Division, which
it did not. Hence, upon the lapse of
five (5) days, the order of the COMELEC dated September 9, 1992 can no longer be
questioned; much less can it be referred to the COMELEC en banc.

WHEREFORE, the instant petition is hereby DISMISSED. The temporary restraining order issued by
this court against the First Division of the COMELEC enjoining the transfer of ballot
boxes to Manila is hereby LIFTED.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino,
Regalado, Davide, Jr., Nocon, Bellosillo, Melo, Campos, Jr., and Quiason, JJ.,
concur.

Gutierrez, Jr., J., on terminal
leave.

*
J. Hugo E. Gutierrez on terminal leave.

^[1]
Annex C, Rollo, pp. 46-47.

^[2]
Annex E,
p. 55.

^[3]
Annex F,
p. 59.

^[4]
Annex G, p. 61.

^[5]
Annex H, p. 71.

^[6]
Annex I, p. 74.

^[7]
Annex J, Rollo, p. 75.

^[8]
Annex K, Rollo, p. 81.

^[9]
Annex L, p. 82.

^[10]
Annexes G, J and L.

^[11]
Annex L, p. 82.

^[12]
Annex M, p. 87.

^[13]
Annex N, Rollo, pp. 93-95.

^[14]
Annexes G, J, and L.

^[15]
Section 2. The Commission en banc. – The
Commission shall sit en banc in cases hereinafter specifically
provided, 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 or issue
relative to an action or proceeding before it is decided to be referred to the
Commission en banc, (Underscoring provided)

^[16]
Section 5(c). Any motion to reconsider
a decision, resolution, order or ruling of a Division shall be resolved by the
Commission en banc.

^[17]
Rollo, p. 12.

^[18]
Nepomuceno v. Salazar, G.R. No. 37165, May 15, 1989, 173 SCRA 366.

^[19]
Mateo v. Court of Appeals, G.R. No. 83354, April 25, 1991, 196 SCRA 280.

^[20]
Section 2. Period for filing motions for reconsideration. – A motion to
reconsider a decision, resolution, order or ruling of a Division shall be filed
within five (5) days from the promulgation
thereof. Such motion, if not pro-forma,
suspends the execution of implementation of the decision, resolution, order or
ruling. (Underscoring provided)