OLIVER O. LOZANO, PETITIONER, VS. HON. COMMISSIONER HAYDEE B. YORAC OF THE COMMISSION ON ELECTIONS, RESPONDENTS.

Petitioner Oliver O.
Lozano filed these two special civil actions for certiorari,
namely:  G.R. No. 94521 which seeks the review of the undated order^[1]
of respondent Commissioner Haydee B. Yorac denying the
motion for her voluntary inhibition and/or disqualification in SPC No. 88-040,
entitled “Oliver O. Lozano, et al. vs. Mayor Jejomar
C. Binay“; and G.R. No. 94626 which prays for a
reversal of the en banc resolution^[2]
promulgated by respondent Commission on Elections (COMELEC) on August 7, 1990^[3]
dismissing the disqualification petition and criminal complaint for vote buying against respondent
Mayor Jejomar C. Binay in connection
with the January 18, 1988 local elections, and its minute resolution of August
15, 1990^[4]
denying due course to petitioner’s motion for reconsideration.

The backdrop of this case on record reveals the following
antecedent facts:

1.   On January 11, 1988, prior to the January 18,
1988 local elections, petitioner
and Bernadette Agcorpa, a registered voter of Makati, filed with the COMELEC a petition for
disqualification against then candidate for mayor Jejomar
C. Binay on the ground that respondent Binay used P9.9 million
of municipal funds to enhance his candidacy and his entire ticket under the Lakas ng Bansa.

2.   The disqualification case was assigned to the
Second Division of the COMELEC composed of Commissioner Haydee
B. Yorac, as presiding officer, and Commissioners
Andres R. Flores and Magdara B. Dimaampao,
as members.

3.   The Second Division, through its Presiding
Commissioner, referred the case to the Law Department of respondent commission
for preliminary investigation of the criminal aspect.  On February
4, 1988, Binay filed his
counter-affidavit with said department.

4.   On June
21, 1988, petitioner filed an Omnibus Motion praying for the
inhibition and/or disqualification of Commissioners Yorac
and Africa.  This
was the first of several motions for inhibition filed by petitioner before respondent
commission.  Petitioner also prayed that
the disqualification petition be referred for consideration en banc.  Commissioner Yorac
denied the motion for inhibition.  On August 10, 1988, the COMELEC en
banc denied the prayer that the case be heard en banc,
ruling that “no substantial reason exists why this case should be taken en
banc; and considering finally that the
case is set for hearing by the
Second Division.”

5.   On October 26, 1988, petitioner Lozano
himself filed a second motion to disqualify Commissioner Yorac
because she postponed motu proprio a hearing set on the ground that she
will study the issue of jurisdiction. 
Said motion was denied.

6.   On November 3, 1988, the COMELEC en banc
promulgated Resolution No. 2050 which provides that petitions for disqualification filed prior to the January 18,
1988 local elections based on Section 68 of the Omnibus Election Code but not
resolved before the elections shall be referred for preliminary investigation
to the Law Department which shall submit its report to the Commission en
banc.  Pursuant to said
resolution, the Second Division on
even date referred back the disqualification case against respondent Binay to the Law Department “before taking any action
thereon.”

7.   On November
8, 1988, petitioner filed another motion praying that the
disqualification case be heard and decided en banc invoking
therein COMELEC Resolution No. 2050. 
Instead of issuing a formal resolution, respondent COMELEC authorized
then Chairman Hilario G. Davide,
Jr. (now a member of this Court) to reply to
petitioner’s counsel.

8.   On May
23, 1990, the Law Department submitted its investigation report^[5]
recommending that criminal charges be filed against respondent Binay for violation of Section 261(a) of the Omnibus
Election Code, as follows:

“PREMISES CONSIDERED, the Law Department (Investigation and
Prosecution Division) RECOMMENDS as follows:

1.    To file the necessary information against
Mayor Jejomar Binay before
the proper Regional Trial Court of the National Capital Region for violation of
Section 261(a) of the Omnibus Election Code, the prosecution thereof to be
handled by the Special Prosecution Committee;

2.    To dismiss the charge against Mayor Jejomar Binay for threats and
intimidation under Section 261(e) of the
Omnibus Election Code for lack of evidence; and

3.  To dismiss the charge against Conchitina Bernardo for insufficiency of evidence.”

9.     On July
2, 1990, petitioner filed a motion praying that the
disqualification case be resolved jointly with the investigation report of the
Law Department.

10.  On July 9, 1990, petitioner filed a third
motion for the voluntary inhibition and/or disqualification of Commissioner Yorac for having issued a previous memorandum addressed to
the chairman and members of respondent commission expressing her opinion that Binay should first be convicted by the regular courts of
the offense of vote buying before he could be disqualified.  The full text of said memorandum^[6]
reads:

“I submit for the Commission’s consideration the matter of the
procedural problems in the above case.

“The chronology of events, so far as this case is concerned,
is as follows:

1.    SPC No. 88-040 for the disqualifica­tion of Jejomar Binay, then candidate for
Mayor of Makati was filed on January 11, 1988. 
It was assigned to the Second Division.

2.    On July
29, 1988, petitioners filed a motion to set the case for hearing
alleging that the Commission on Audit (COA) had officially confirmed the
allegations of the complainants.

3.    Hearings were actually conducted on August
11, September 12, October 12 and October
19, 1988.

4.    On November
3, 1988, the Commission en banc adopted Resolution
No. 88-2050, which, inter alia provides
that:

1.  x x
x

In case such complaint was not resolved before the election, the
commission may motu proprio,
or on motion of any of the parties, refer the complaint to the Law Department
of the Commission as an instrument of the latter in the exercise of its
exclusive power to conduct a preliminary investigation of all cases involving
criminal infractions of the election laws.  Such recourse may be availed of
irrespective of whether the respondent has been elected or has lost in the
election;

x x x

3.   The Law Department shall terminate the
preliminary investigation within thirty (30) days from receipt of the referral
and shall submit its study, report and recommendation to the Commission en
banc within five (5) days from the conclusion of the preliminary
investigation.  If it makes a prima
facie finding of guilt, it shall submit with such study the information
for filing with the appropriate court.

5.    On the same date, conformable with
Resolution No. 88-2050, the Second Division referred SPC No. 88-040 to the Law
Department.

6.    In the course of the investigation by the
Law Department, the case became entangled with procedural difficulties the
resolution of which has been sought in the Second Division.

“My own personal thinking on the matter is that since the
preliminary investigation is the determination of criminal liability, with the
administrative consequence of removal imposable only as long term sanction,
i.e., after final criminal
conviction, the matter of procedure in the preliminary investigation is one
that should be addressed to the commission en banc rather than to
either of its divisions.”

11. In On
August 2, 1990, petitioner
received a notice setting the promulgation of judgment en banc
for August 6, 1990.  Petitioner on August 3, 1990 filed an objection to the promulgation of
judgment en banc, allegedly
because there was no
showing that the case was referred to the
commission en banc upon
unanimous vote of all the
members of the Second Division.

12. In its aforestated August 7, 1990 resolution which is
herein assailed, the COMELEC en banc dismissed the petition for
disqualification and the criminal complaint for vote buying against respondent Binay.  During the
promulgation of judgment, petitioner asked that the same be suspended until
after the resolution of the legal
issues raised involving constitutional and jurisdictional questions.  Commissioner Yorac
was likewise requested by petitioner to decide the motion for her
inhibition.  In her undated order subject
of the petition in G.R. No. 94521, as stated in limine,
Commissioner Yorac denied the motion for her
inhibition, stating that:

“During the deliberations on this case, I seriously considered
inhibiting myself from despite participating and voting despite the flimsy
basis which was cited for it.  But I
became convinced, from the information that was coming in, that the motion was
really part of a numbers game,
being played out on the basis of information emanating from the Commission
itself as to the developments in the deliberation and the voting.  Reliable information also shows that approaches have been made to
influence the voting.

“It is for this reason that I do not inhibit myself from the
voting in this case consistent with my reading of the law and the evidence.”

13.  The aforesaid resolution of August 7, 1990 dismissed the petition
for disqualification for lack of merit. 
The motion for reconsideration filed by herein petitioner was denied in
a resolution dated August 15, 1990, on the ground that “pursuant to Section
1(d), Rule 13 of the Comelec Rules of Procedure, a
motion for reconsideration of an en banc ruling of the Commission
is one of the prohibited pleadings, and therefore not allowed under the
Rules.”

Succinctly condensed, the petition filed against respondents
COMELEC and Binay raises the following issues:

1.  Contrary to the requirement under Section 2,
Rule 3 of the COMELEC Rules of Procedure, SPC NO. 88-040 was referred to the
Commission en banc without the required unanimous vote of all the
members of the Second Division.

2.  The minute resolution of August 15, 1990 is null and void for having been
issued without prior notice to the parties and without fixing a date for the
promulgation thereof.

3. Respondent
commission committed a grave abuse of discretion amounting to lack of
jurisdiction in not finding Binay guilty of vote-buying, contrary to the evidence
presented by petitioner.^[7]

In G.R. No. 94521, this Court    issued
on August 16, 1990 a temporary restraining order^[8]
ordering respondent Commissioner Yorac to cease and
desist from participating in the deliberation and resolution of the motion for
reconsideration dated August 9, 1990 filed in SPC No. 88-040, entitled
“Oliver O. Lozano, et al. vs. Jejomar C. Binay.” The order was served in the office of
Commissioner Yorac on August 17, 1990 at 11:25
A.M.^[9]
It appears, however, that the motion for reconsideration was denied by
respondent commission en banc in a resolution dated August
15, 1990, copy of
which was served on petitioner on August 17, 1990 at 12:35 P.M. 
Consequently, the issue on the inhibition and disqualification of
Commissioner Yorac has been rendered moot and
academic.

Granting arguendo that the
petition for inhibition of Commissioner Yorac has not
been mooted by the resolution en banc dismissing the main case
for disqualification, petitioner’s postulation that she should have inhibited
herself from hearing the main case, for
allegedly having prejudged the case when she advanced the opinion that
respondent Binay could only be disqualified after
conviction by the regional trial court, is of exiguous validity.  In the first place, the COMELEC Rules of
Procedure, specifically Section 1, Rule 4 thereof, prohibits a member from,
among others, sitting in a case in which he has publicly expressed prejudgment
as may be shown by convincing proof. 
There is no showing that the memorandum wherein Commissioner Yorac rendered her opinion was ever made public either by
publication or dissemination of the same to the public.  Furthermore, the opinion of Commissioner Yorac was based on prior cases for disqualification filed
with the COMELEC wherein prior conviction of the respondent was considered a condition sine
qua non for the filing of the
disqualification case.^[10]
We accordingly find no compelling reason to inhibit Commissioner Yorac from participating in the hearing and decision of the
case.

Similarly, we find the
petition in G.R. No. 94626 devoid of merit. 
Petitioner first avers that under Section 2, Rule 3 of the COMELEC Rules of Procedure, a
case pending in a division may be referred to and decided by the Commission en
banc only on a unanimous vote of all the members of the division.  It is contended that SPC No. 88-040 which was
pending before the COMELEC’s Second Division was
referred to the Commission en banc without the required unanimous
vote of all the division members, petitioner alleging that Commissioner Andres
R. Flores voted for the referral of the petition for disqualification to the
division.  It is, therefore, the
submission of petitioner that the resolution of the Commission en banc
dated August 17, 1990 is
null and void for lack of jurisdiction and for being unconstitutional.

The argument of petitioner is not well taken.  COMELEC Resolution No. 2050 issued by the
commission en banc on November
3, 1988 is the applicable law in this disqualification case.  It provides:

x x
x

“RESOLVED, as it hereby resolves, to formulate the following
rules governing the disposition of cases of disqualification filed by virtue of
Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. 6646
otherwise known as the Electoral Reforms Law of 1987:

1.  Any complaint for the disqualifica­tion of a duly
registered candidate based upon any of the grounds specifically enumerated
under Section 68 of the Omnibus Election Code, filed directly with the
Commission before an election in which the respondent is a candidate, shall be
inquired into by the Commission for the purpose of determining whether the acts
complained of have in fact been committed. 
Where the inquiry by the Commission results in a finding before
election, that the respondent candidate did in fact commit the acts complained
(of), the Commission shall order the disqualification of the respondent
candidate from continuing as such candidate.

In case such complaint was not resolved before the election, the
Commission may motu proprio,
or on motion of any of the parties, refer the complaint to the Law Department
of the Commission as the instrument of the latter in the exercise of its
exclusive power to conduct a preliminary investigation of all cases involving
criminal infractions of the election laws. 
Such recourse may be availed of irrespective of whether the respondent
has been elected or has lost in the election.

2.  Any complaint for disqualification based on
Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act
No. 6646 filed after the election against a candidate who has already been
proclaimed as winner shall be dismissed as a disqualification case.  However, the complaint shall be referred for
preliminary investigation to the Law Department of the Commission.

Where a similar complaint is filed after election but before
proclamation of the respondent candidate, the complaint shall, nevertheless, be
dismissed as a disqualification case. 
However, the complaint shall be referred for preliminary investigation
to the Law Department.  If, before
proclamation; the Law Department makes a prima facie finding of
guilt and the corresponding information has been filed with the appropriate
trial court, the complainant may file a petition
for suspension of the proclamation of the respondent with the court
before which the criminal case is pending and the said court may order the
suspension of the proclamation if the evidence of guilt is strong.

3.  The Law Department shall terminate the
preliminary investigation within thirty (30) days from receipt of the referral
and shall submit its study, report and recommendation to the Commission en
banc within five (5) days from the conclusion of the preliminary
investigation.  If it makes a prima facie
finding of guilt, it shall submit with
such study the information for filing with the appropriate court.^[11]

x x x

Contrary to petitioner’s submission that said resolution has been
repealed by the COMELEC Rules of Procedure which took effect on November 15, 1988, there is nothing
in the resolution which appears to be inconsistent with the procedural rules
issued by the COMELEC.

Firstly, Resolution No. 2050 was passed by reason of the variance
in opinions of the members of respondent commission on matters of procedure in
dealing with cases of disqualification filed pursuant to Section 68 of the
Omnibus Election Code in relation to Section 6 of Republic Act No. 6646, or the
Electoral Reforms Law of 1987, and the manner of disposing of the same had not
been uniform.  Hence, the COMELEC decided
to lay down a definite policy in the disposition of these disqualification
cases.  With this purpose in mind, the
Commission en banc adopted Resolution No. 2050.  The transitory provision under Section 2,
Rule 44 of the COMELEC Rules of Procedure provides that these rules shall
govern all cases pending at the time of effectivity
thereof, except to the extent that in the opinion of the commission, or the
court in appropriate cases, an application would not be feasible or would work injustice, in which event the former
procedure shall apply.  We believe that
Resolution No. 2050 qualifies and should be considered as an exception to the
generally retroactive effect of said rules.

Secondly, prior to the
issuance of Resolution No. 2050, petitioner had filed several motions with the
Second Division asking for the referral of the disqualification case to the
Commission en banc.  After
the COMELEC en banc issued Resolution No. 2050, petitioner filed another motion for the
referral of the case to the Commission en banc, specifically
invoking Resolution No. 2050.^[12] In the words of petitioner in his said
motion, under the aforesaid resolution, “once the petition for
disqualification is forwarded to the Law Department, the case is deemed en
banc because the report is submitted En Banc by the Law
Department.” Petitioner having invoked the jurisdiction of the Commission en
banc is now estopped from questioning the same after obtaining an
adverse judgment therefrom.

Thirdly, Commissioner
Andres R. Flores, who opined that the
disqualification case should first be
resolved by the Second Division, has since then clarified his position after he was reminded that Resolution No. 2050, which he had
admittedly “completely forgotten”
had “laid down a definite policy on the disposition of
disqualification cases contemplated in Section 68 of the Omnibus
Election Code.”^[13]

Lastly, Resolution No. 2050 specifically mandates a definite
policy and procedure for disqualification cases.  The COMELEC Rules of Procedure speak of
special actions, which include disqualification cases, in general.  Hence, as between a specific and a general
rule, the former shall necessarily prevail.

Anent the propriety of the issuance of the resolution denying
petitioner’s motion for reconsideration, suffice it to say that the requirement
of notice in the promulgation of resolutions and decisions of the COMELEC
embodied in Section 5 of Rule 18 of the Rules does not apply in the case at bar
for the simple reason that a motion for reconsideration of an en banc ruling, resolution, order or
decision is not allowed under Section 1, Rule 13 thereof.

Respondent COMELEC, in dismissing the petition for
disqualification and in holding that respondent Binay
is not guilty of vote buying, ruled as follows:

x x
x

“The commission concurs with the findings of the Law
Department on enumeration nos. 2 and 3 but rejects exception to the recommenda­tion
for prosecution of respondent Binay under no. 1
thereof, it appearing that there is a clear misappreciation
of the evidence submitted considering the inconsistencies in the testimonies of
material witnesses for the petitioners, as well as the correct interpretation
and application of the law cited as basis for the prosecution of respondent Binay.

x x
x

“The seventeen (17) affidavits submitted by petitioners
attached to their original petition for disqualification dated January 11, 1988, differ from the
twenty (20) affidavits attached to the memorandum of petitioners filed with the
Commission (Second Division) on August
22, 1988.  The records of the
case do not show that these seventeen (17) affidavits attached to the original
petition were affirmed by the affiants during the investigation conducted by
the Law Department of this Commission. 
Of the twenty (20) affidavits appended to the Memorandum of August 22,
1988, only five (5) of the affiants were able to affirm their testimonies
before hearing officer Alioden Dalaig
of the Law Department of this Commission x x x.

x x
x

“In his counter affidavit, respondent Jejomar
C. Binay denied the allegations in the petition for
disqualification and interposed the defense that:

‘The Christmas gift-giving is an annual project of the Municipal
Government of Makati ever since the time of Mayors Estrella and Yabut in the spirit
of yuletide season wherein basic and essential items are distributed to the
less fortunate and indigent residents of Makati out
of funds appropriated for the purpose duly budgeted and subject to audit by the
Commission on Audit and same were prepared sometime on October 1987 long before
I filed my certificate of candidacy and ceased to be the Acting Mayor of Makati, x x x;

‘The alleged ticket bearing my name, assuming its existence,
indicates nothing of significance except that of a Christmas and New Year
greeting and is not suggestive of anything which may be considered or interpreted
to be political in nature such as indorsing my candidacy for that matter.  x x x’

x x
x

“It is undisputed that at the time the supposed ‘gift-giving’
transpired between the periods of December 22-30, 1987, respondent Binay was no longer Mayor of the Municipality of Makati having resigned from the position on December 2,
1987, to pursue his candidacy for re-election to the same position.  The OIC Mayor of Makati
on the dates complained of, December 22-30, 1987, was OIC Mayor Sergio S.
Santos who stated in his affidavit dated February 4, 1988, that he was Officer
in Charge of Makati, Metro Manila, from December 2,
1987 to February 2, 1988, and that as such he implemented on December 18, 1987
the municipal government’s annual and traditional distribution of Christmas
gifts.

“There is ample evidence to show that it was not respondent Binay who ‘gave’ the plastic bags containing Christmas
gifts to the witnesses who executed affidavits for the petitioners.  The ‘giver’ was in fact the Municipality
of Makati.  And this is evidenced by the following
documents attached to the records of this case:

1.   Certification dated Janua­ry 11, 1988 issued by OIC Roberto A. Chang
attached as Annex A to respondent Binay’s counter
affidavit dated February 5, 1988.

2.  COA Report dated Janua­ry 11, 1988 attached as
Annex ‘R’ to the pleading denominated as Motion to Set Hearing filed by
complainant Oliver Lozano dated July 26, 1988, filed in connection with SPC No.
88-040 for disqualification against respondent Binay;

“The findings of the COA Report itself (dated June 21, 1988)
upon which petitioners rely heavily in their disqualification case against
respondent Binay, identify the ‘giver’ of the
Christmas gifts as the Municipality of Makati and not
respondent Binay. 
x x x

x x
x

“Respondent Binay’s allegation that
the gift giving was an annual project of the Municipal Government of Makati was not denied nor disputed by the petitioners who
in fact made capital of the aforequoted findings of
the Commission on Audit in their charge against respondent Binay
for alleged misuse of public funds. 
Also, petitioners in their latest pleading filed with the Commission on
July 2, 1990, entitled ‘Motion To Resolve The Disqualification Case Jointly
With The Investigation Report of the Law Department’, instead of rebutting
respondent Binay’s allegation that the Christmas gift
giving is an annual project of the Municipal Government of Makati
ever since the time of Mayors Estrella and Yabut, merely stated that:

‘x x x Assuming arguendo that Mayor Estrella had practiced this gift-giving every Christmas,
the fact is, that there had been no electoral campaign on-going during such
distribution and/or no election was scheduled during Mayor Estrella’s
tenure.

‘This is also true in the case of Mayor Yabut‘.

“More, Petitioners’ documentary evidence, among which are
Exhibits ‘A’; ‘A-1’; ‘A-2’; ‘A-20’; ‘B’; ‘B-1’; ‘B-2’; ‘B-25’; ‘C-1’; ‘C-2’;
‘C-27’; ‘D’; ‘E’ and ‘F’, all
show indubitably that the Christmas packages which were distributed between the
periods of December 22-30, 1987, were ordered, purchased and paid for by the
Municipality of Makati and not by respondent Binay.  There is more
than prima facie proofs to show that those gift packages received by the
witnesses for petitioners were intended as Christmas presents to Makati‘s
indigents in December 1988.

“It would therefore appear from the evidence submitted by the
petitioners themselves that the giver, if any, of the Christmas gifts which
were received by the witnesses for the petitioners was in fact, the Municipality
of Makati
and not respondent Jejomar C. Binay.  The presence of respondent Binay, if at all true at the time the gifts were
distributed by the Municipality of Makati to the recipients of
the Christmas gifts, was incidental.  It
did not make respondent Binay as the ‘giver’ of those
Christmas gifts.  Nor did the giving of
such gifts by the Municipal Government of Makati
influence the recipients to vote for respondent Binay
considering that the affiants themselves who testified for the petitioners
admitted and were aware that the gift packages came from the Municipality
of Makati
and not from respondent Jejomar C. Binay.

“The foregoing conclusion is confirmed by petitioners’
witnesses in the persons of Lolita Azcarraga, Johnson
Carillo, Rommel Capalungan, Renato Leonardo,
Manuel Allado, Edwin Pascua,
Wilberto Torres, Apolonio
De Jesus, Caridad Reposar, Artemus Runtal and Jose Ermino who, in their sworn statements, uniformly described
the gift package as labelled with the words ‘Pamaskong Handog ng Makati‘, a clear indication
that the ‘giver’ of the Christmas gifts was indeed the Municipality of Makati and not respondent Binay.

“There is one aspect of this case which somehow lends credence
to respondent Binay’s claim that the instant petition
is a political harassment.  It is noted
by the commission that while the criminal indictment against respondent Binay is for alleged violation of Section 261(a) of the
Omnibus Election Code, petitioners did not implead as
party respondents the affiants who received the Christmas packages apparently
in exchange for their votes.  The law on
‘vote buying’ [Section 261(a) supra] also penalizes ‘vote-buying’ and ‘vote-selling’, then the
present indictment should have been pursued against both respondent Binay and against the affiants, against the former for
buying votes and against the latter for selling their votes.”^[14]

x x
x

We uphold the foregoing factual findings, as well as the
conclusions reached by respondent COMELEC, in dismissing the petition for the
disqualification of respondent Binay.  No clear and convincing proof exists to show
that respondent Binay was indeed engaged in vote
buying.  The traditional gift giving of
the Municipality of Makati during the Christmas
season is not refuted.  That it was
implemented by respondent Binay as OIC Mayor of Makati at that time does not
sufficiently establish that respondent was trying to influence and induce his
constituents to vote for him.  This would
be stretching the interpretation of the law too far.  Petitioner deduces from this act of gift
giving that respondent was buying the votes of the Makati residents.  It requires more than a mere tenuous
deduction to prove the offense of vote buying. 
There has to be concrete and direct evidence or, at least, strong
circumstantial evidence to support the charge that respondent was indeed
engaged in vote buying.  We are convinced
that the evidence presented, as well as the facts obtaining in the case at bar,
do not warrant such finding.

Finally, we have consistently held that under the 1935 and 1973
Constitutions, and the same is true under the present one, this Court cannot
review the factual findings of the Commission on Elections absent a grave abuse
of discretion and a showing of arbitrariness in its decision, order or resolution.  Thus:

“The principal relief sought by petitioner is predicated on
the certiorari jurisdiction of this court as provided in Section 11,
Article XII-C, 1973 Constitution.  It is, as explained in Aratuc
vs. Commission on Elections, ‘not as broad as it used to be’ under the old
Constitution and it ‘should be confined to instances of grave abuse of
discretion amounting to patent and substantial denial of due process.’
Moreover, the legislative construction of the constitutional provision has
narrowed down ‘the scope and extent of the inquiry the Court is supposed to
undertake to what is strictly the office of certiorari as distinguished
from review.’ And in Lucman vs. Dimaporo,
a case decided under the Constitution of 1935, this Court, speaking through
then Chief Justice Concepcion, ruled that ‘this Court
can not x x x review
rulings or findings of fact of the Commission on Elections,’ as there is ‘no
reason to believe that the framers of our Constitution intended to place the
[said] Commission – created and explicitly made ‘independent’ by the
Constitution itself – on a lower
level’ than statutory administrative organs (whose factual findings are not
‘disturbed by courts of justice, except when there is absolutely no evidence or
no substantial evidence in support of such findings.’).  Factual matters were deemed not proper for
consideration in proceedings brought either ‘as an original action for certiorari
or as an appeal by certiorari . . . [for] the main issue in . . . certiorari
is one of jurisdiction – lack of jurisdiction or grave abuse of discretion
amounting to excess of jurisdiction’ while ‘petitions for review on certiorari
are limited to the consideration of questions of law.’

“The aforementioned rule was reiterated in the cases of Ticzon and Bashier.  Indeed, as early as the year 1938, applying
Section 4, Article VI of the 1935 Constitution, this Court held that the
Electoral Commission’s ‘exclusive jurisdiction’ being clear from the language
of the provision, ‘judgment rendered . . . in the exercise of such an
acknowledged power is beyond judicial interference, except ‘upon a clear
showing of such arbitrary and improvident use of the power as will constitute a denial of due
process of law.’ Originally lodged in the legislature, that exclusive function
of being the ‘sole judge’ of contests ‘relating to the election, returns and
qualifications’ of members of the legislature was transferred ‘in its totality’
to the Electoral Commission by the 1935 Constitution.  That grant of power, to use the language of
the late Justice Jose P. Laurel, ‘was intended to be as complete and unimpaired
as if it had remained originally in the legislature .  . . ‘ 
x x x

“x x x A
review of the respondent Commission’s factual findings/conclusions made on the
basis of the evidence evaluated is urged by the petitioner, ‘if only to guard
against or prevent any possible misuse or abuse of power.’ To do so would mean
‘digging into the merits and unearthing errors of judgment’ rendered on matters
within the exclusive function of the Commission, which is proscribed by the Aratuc and other decisions of this Court.  x x x“^[15]

The charge against respondent Binay for
alleged malversation of public funds should be
threshed out and adjudicated in the appropriate proceeding and forum having
jurisdiction over the same. 
Consequently, it was properly dismissed by the Commission on Elections.

WHEREFORE, the questioned order of respondent Commissioner Haydee B. Yorac in G.R. No. 94521
and the challenged resolutions of respondent. 
Commission on Elections subject of the petition in G.R. No. 94626 are
hereby AFFIRMED.  The temporary restraining order issued
in G.R. No. 94521 is hereby LIFTED and SET
ASIDE.

SO ORDERED.

Fernan, C.J., Narvasa,
Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, and Medialdea, JJ., concur.

Melencio-Herrera, J., on leave.

Davide, Jr., J., no part. As then Chairman of the COMELEC I
participate in some incidents related to the issues in this petition.

^[1]
Annex O, Petition, G.R. No.
94521; Rollo, 93.

^[2]
Penned by Commissioner Dario C. Rama, with Commissioner Haydee
B. Yorac, Alfredo E. Abueg,
Jr., and Leopoldo L. Africa     concurring, and Commissioners Andres R.
Flores and Magdara B. Dimaampao
dissenting on the same ground hereinafter clarified.

^[3]
Annex S, Petition, G.R. No. 94626; Rollo, 119.

^[4]
Annex U, id.; ibid.,
160.

^[5]
Annex L, id.; ibid,, 73.

^[6]
Annex Q, id.; ibid., 116.

^[7]
Rollo, G.R. No. 94626, 2-8.

^[8]
Rollo, G.R. No. 94521, 113-114.

^[9]
Ibid., id., 119.

^[10]
Annexes 4 and 5, Comment of the Solicitor General, G.R. No. 94521; Rollo, 148 and 161.

^[11]
Annex 2, id.; ibid., 144.

^[12]
Annex 6, id.; ibid., 172.

^[13]
Annex 10, id.; ibid., 179.  Acting on the letter of Commissioner Flores
on this matter, dated August 17, 1990, respondent commission resolved to direct
that the same “be incorporated and form part of the record of the case so that the pertinent portion
of his opinion which voted to return the case to the Second Division is pro tanto modified and he is just
submitting his vote on the merit of this case to the Commission en banc.”

^[14]
Rollo, G.R. No. 94626, 121-134.

^[15]
Padilla vs. Commission on Elections, et al., 137 SCRA 424 (1985).