RUPERTO A. AMBIL, JR., petitioner, vs.

THE COMMISSION ON ELECTIONS (FIRST DIVISION, FORMERLY SECOND DIVISION) and JOSE T. RAMIREZ, respondents. FACTS: Petitioner and private respondent were candidates for the position of Governor, Eastern Samar during the May 11, 1998 elections. The Provincial Board of Canvassers proclaimed petitioner as the duly elected Governor. Private respondent filed an election protest with the COMELEC, which was assigned to the First Division. Commissioner X prepared and signed a proposed resolution in the case. Commissioner Y dissented, while Commissioner Z wanted to see both positions first before giving her decision. On 2/15/00, Commissioner X retired and was replaced. On 2/24/00, petitioner and respondent received a purported resolution in favor of private respondent promulgated on 2/14/00 and signed by Commissioners X, Y, and Z. The First Division later declared that the parties should ignore the resolution since it was not yet promulgated. The Division later set a date for promulgation of a resolution of the case, and said that the aggrieved party could then challenge it through a Motion for Reconsideration before the Commission en banc or through a certiorari case before the SC. The petitioner filed this case to annul the order for the promulgation of the resolution and to direct the First Division to deliberate anew on the case. HELD: The SC dismissed the case for prematurity. It ruled that it has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the Commission on Elections. The instant case does not fall under any of the recognized exceptions to the rule in certiorari cases dispensing with a motion for reconsideration prior to the filing of a petition. In truth, the exceptions do not apply to election cases where a motion for reconsideration is mandatory by Constitutional fiat to elevate the case to the Comelec en banc, whose final decision is what is reviewable via certiorari before the Supreme Court. The SC declared the resolution signed by Commissioner X as void for various reasons. First, one who is no longer a member of the Commission at the time the final decision or resolution is promulgated cannot validly take part in that resolution or decision. Second, the Clerk of the 1st Division denied the release or promulgation of the resolution on 2/14/00 resolution. Third, the 1st Division even later said that the parties should ignore the resolution since it was not yet promulgated. Lastly, Commissioner Z could not have affixed her signature on the resolution, since on the same date an order was issued where she said that she still wanted to see both positions before making her decision.

Bellosillo, Melo, Puno, Vitug, Panganiban, Purisima, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur. Davide, Jr., C.J., Mendoza, and Quisumbing, JJ., join the dissent of Mr. Justice De Leon. Kapunan, J., voted for this ponencia during the deliberations on 17 October 2000. Buena, J., no part. De Leon, Jr., J., see dissenting opinion.

DE LEON, JR., J.: With due respect, I dissent from Mr. Justice Bernardo P. Pardo's ponencia which denies the petition in the case at bench. Ordinarily, according to the ponencia, the Supreme Court has no power to review via certiorari any interlocutory order of a Division of the COMELEC.1 The decision of the COMELEC division must be reviewed by the COMELEC en banc via a motion for reconsideration before the final en banc decision may be brought to the Supreme Court on certiorari.2 However, in the 1997 case of Kho v. Commision on Elections,3 this Court4 declared that "In a situation where the Commission on Elections in division commits grave abuse of discretion or acts without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending before it and the controversy does not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved party is NOT to refer the controversy to the Commission en banc but to elevate it to the Supreme Court via a petition for certiorari under Rule 65 of the Rules of Court."