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Section 1. Scope. — This Rule shall govern the review of judgments and final orders or
resolutions of the Commission on Elections and the Commission on Audit. (n)
Section 3. Time to file petition. — The petition shall be filed within thirty (30) days from
notice of the judgment or final order or resolution sought to be reviewed. The filing of a
motion for new trial or reconsideration of said judgment or final order or resolution, if
allowed under the procedural rules of the Commission concerned, shall interrupt the
period herein fixed. If the motion is denied, the aggrieved party may file the petition
within the remaining period, but which shall not be less than five (5) days in any event,
reckoned from notice of denial. (n)
Section 4. Docket and other lawful fees. — Upon the filing of the petition, the petitioner
shall pay to the clerk of court the docket and other lawful fees and deposit the amount of
P500.00 for costs. (n)
Section 5. Form and contents of petition. — The petition shall be verified and filed in
eighteen (18) legible copies. The petition shall name the aggrieved party as petitioner
and shall join as respondents the Commission concerned and the person or persons
interested in sustaining the judgment, final order or resolution a quo. The petition shall
state the facts with certainty, present clearly the issues involved, set forth the grounds
and brief arguments relied upon for review, and pray for judgment annulling or
modifying the questioned judgment, final order or resolution. Findings of fact of the
Commission supported by substantial evidence shall be final and non-reviewable.
The petition shall be accompanied by a clearly legible duplicate original or certified true
copy of the judgment, final order or resolution subject thereof, together with certified true
copies of such material portions of the record as are referred to therein and other
documents relevant and pertinent thereto. The requisite number of copies of the petition
shall contain plain copies of all documents attached to the original copy of said petition.
The petition shall state the specific material dates showing that it was filed within the
period fixed herein, and shall contain a sworn certification against forum shopping as
provided in the third paragraph of section 3, Rule 46.
The petition shall further be accompanied by proof of service of a copy thereof on the
Commission concerned and on the adverse party, and of the timely payment of docket
and other lawful fees.
The failure of petitioner to comply with any of the foregoing requirements shall be
sufficient ground for the dismissal of the petition. (n)
Section 6. Order to comment. — If the Supreme Court finds the petition sufficient in
form and substance, it shall order the respondents to file their comments on the petition
within ten (10) days from notice thereof; otherwise, the Court may dismiss the petition
outright. The Court may also dismiss the petition if it was filed manifestly for delay or the
questions raised are too unsubstantial to warrant further proceedings. (n)
No other pleading may be filed by any party unless required or allowed by the Court. (n)
Section 8. Effect of filing. — The filing of a petition for certiorari shall not stay the
execution of the judgment or final order or resolution sought to be reviewed, unless the
Supreme Court shall direct otherwise upon such terms as it may deem just. (n)
Section 9. Submission for decision. — Unless the Court sets the case for oral
argument, or requires the parties to submit memoranda, the case shall be deemed
submitted for decision upon the filing of the comments on the petition, or of such other
pleadings or papers as may be required or allowed, or the expiration of the period to do
so. (n)
ii. PROCEDURE
A judgment or final order or resolution of the COMELEC and the COA may be
brought by the aggrieved party to the Supreme Court on certiorari under Rule 65.
TIME TO FILE PETITION (Section 3)
The aggrieved party should file a petition to the Supreme Court from a decision
of the COMELEC and the COA within 30 days from notice of judgment or final
order or resolution sought to be reviewed.
The period of 30 days may be interrupted when there is a motion for new trial
and reconsideration. The motion of reconsideration should be filed within the
remaining period but less than five (5) days in any event, reckoned from notice of
denial.
DOCKET AND OTHER LAWFUL FEES (Section 4)
The petitioner shall pay to the clerk of court the docket and other lawful fees
and deposit the amount of P500.00 for costs upon the filing of the petition.
FORM AND CONTENT OF PETITION (SECTION 5)
The petition shall be verified and filed in eighteen (18) legible copies with the
name of the aggrieved party as petitioner and shall join as respondents the
Commission concerned and the person or persons interested in sustaining
the judgment, final order or resolution a quo.
This being a special civil action, the Commission concerned is joined as a
party respondent.
The petition shall state clearly the facts and the issues involved, the grounds
and brief arguments relied upon for review, and pray for judgment annulling or
modifying the questioned judgment, final order or resolution.
The petition shall be accompanied by a clearly legible duplicate original or
certified true copy of the judgment, final order or resolution subject thereof,
together with certified true copies of such material portions of the record as
are referred to therein and other documents relevant and pertinent thereto.
The requisite number of copies of the petition shall contain plain copies of all
documents attached to the original copy of said petition.
The petition shall state the specific material dates showing that it was filed
within the period fixed herein, a sworn certification against forum shopping as
provided in the third paragraph of section 3, Rule 46, a proof of service of a
copy thereof on the Commission concerned and on the adverse party, and of
the timely payment of docket and other lawful fees.
FACTS:
The following material antecedents:
a. February 1, 2008 The COMELEC First Division issued its Resolution
(assailed in the petition);
b. February 4, 2008 The counsel for petitioner Nilo T. Pates (petitioner)
received a copy of the February 1, 2008 Resolution;
c. February 8, 2008 The petitioner filed his motion for reconsideration
(MR) of the February 1, 2008 Resolution (4 days from receipt of the February 1,
2008 Resolution)
d. September 18, 2008 The COMELEC en banc issued a Resolution
denying the petitioners MR (also assailed in the petition).
e. September 22, 2008 The petitioner received the COMELEC en banc
Resolution of September 18, 2008
The last day for the filing of a petition for certiorari fell on a Saturday,
October 18, 2008. Effectively, the last day for filling was October 20, 2008 the
following Monday or the first working day after October 18, 2008. As the
petitioner only had the remaining period of 26 days to file his petition, after using
up 4 days in preparing and filing his Motion for Reconsideration. The Petitioner
filed his petition for certiorari on the final COMELEC Resolution on October 22,
2008 or 2 days late. Hence, his petition was dismissed.
The Petitioner asks to reverse the dismissal of his petition, arguing that
the petition was seasonably filed under the fresh period rule enunciated by the
Supreme Court in a number of cases decided beginning the year 2005. He
claims that, historically, the fresh period rule was the prevailing rule in filing
petitions for certiorari. This Court, he continues, changed this rule when it
promulgated the 1997 Rules of Civil Procedure and Circular No. 39-98, which
both provided for the filing of petitions within the remainder of the original period,
the remainder being the original period less the days used up in preparing and
filing a motion for reconsideration. He then points out that on September 1, 2000
or only three years after, this Court promulgated A.M. No. 00-02-03-SC bringing
back the fresh period rule.
Respondents were asked to comment, but the Office of the Solicitor
General (OSG), citing Section 5, Rule 65 of the Rules of Court and its related
cases, asked via a Manifestation and Motion that it be excused from filing a
separate comment, which was granted. For her part, respondent Emelita B.
Almirante filed a comment stating that: (1) we are absolutely correct in
concluding that the petition was filed out of time; and (2) the petitioners reliance
on Section 4, Rule 65 of the Rules of Court (as amended by A.M. No. 00-02-03-
SC) is totally misplaced, as Rule 64, not Rule 65, is the vehicle for review of
judgments and final orders or resolutions of the COMELEC. Respondent
Almirante points out that Rule 64 and Rule 65 are different; Rule 65 provides for
a 60-day period for filing petitions for certiorari, while Rule 64 provides for 30
days.
RULING:
The motion for reconsideration was denied for lack of merit.
Section 7, Article IX-A of the Constitution provides that unless otherwise provided
by the Constitution or by law, any decision, order, or ruling of each Commission may be
brought to the Court on certiorari by the aggrieved party within 30 days from receipt of a
copy thereof. For this reason, the Rules of Court provide for a separate rule (Rule 64)
specifically applicable only to decisions of the COMELEC and the Commission on Audit.
This Rule expressly refers to the application of Rule 65 in the filing of a petition for
certiorari, subject to the exception clause except as hereinafter provided.
Even a superficial reading of the motion for reconsideration shows that the
petitioner has not challenged the court’s conclusion that his petition was filed outside
the period required by Section 3, Rule 64; he merely insists that the fresh period rule
applicable to a petition for certiorari under Rule 65 should likewise apply to petitions for
certiorari of COMELEC rulings filed under Rule 64.
Rule 64, however, cannot simply be equated to Rule 65 even if it expressly refers
to the latter rule. They exist as separate rules for substantive reasons as discussed
below. Procedurally, the most patent difference between the two i.e., the exception that
Section 2, Rule 64 refers to is Section 3 which provides for a special period for the filing
of petitions for certiorari from decisions or rulings of the COMELEC en banc. The period
is 30 days from notice of the decision or ruling (instead of the 60 days that Rule 65
provides), with the intervening period used for the filing of any motion for
reconsideration deductible from the originally-granted 30 days (instead of the fresh
period of 60 days that Rule 65 provides).
Exceptional circumstances or compelling reasons may have existed in the past
when we either suspended the operation of the Rules or exempted a particular case
from their application.[9] But, these instances were the exceptions rather than the rule,
and we invariably took this course of action only upon a meritorious plea for the liberal
construction of the Rules of Court based on attendant exceptional circumstances.
These uncommon exceptions allowed us to maintain the stability of our rulings, while
allowing for the unusual cases when the dictates of justice demand a correspondingly
different treatment.
Under this unique nature of the exceptions, a party asking for the suspension of
the Rules of Court comes to us with the heavy burden of proving that he deserves to be
accorded exceptional treatment. Every plea for a liberal construction of the Rules must
at least be accompanied by an explanation of why the party-litigant failed to comply with
the rules and by a justification for the requested liberal construction.
Significantly, the petitioner presented no exceptional circumstance or any
compelling reason to warrant the non-application of Section 3, Rule 64 to his petition.
He failed to explain why his filing was late. Other than his appeal to history, uniformity,
and convenience, he did not explain why we should adopt and apply the fresh period
rule to an election case. The petitioners omissions are fatal, as his motion does not
provide any reason specific to his case why the court should act as he advocates.
TOMAS R. OSMEA v. COMMISSION ON AUDIT
G.R. No. 188818
May 31, 2011
EN BANC
FACTS:
The City of Cebu was to play host to the 1994 Palarong Pambansa
(Palaro). In preparation for the games, the City engaged the services of WT
Construction, Inc. (WTCI) and Dakay Construction and Development Company (DCDC)
to construct and renovate the Cebu City Sports Complex. Osmea, then city mayor, was
authorized by the Sangguniang Panlungsod (Sanggunian) of Cebu to represent the City
and to execute the construction contracts.
While the construction was being undertaken, Osmea issued a total of 20
Change/Extra Work Orders to WTCI, amounting to P35,418,142.42 (about 83% of the
original contract price), and to DCDC, amounting to P15,744,525.24 (about 31% of the
original contract price). These Change/Extra Work Orders were not covered by any
Supplemental Agreement, nor was there a prior authorization from the Sanggunian.
Nevertheless, the work proceeded on account of the extreme urgency and need to have
a suitable venue for the Palaro. The Palaro was successfully held at the Cebu City
Sports Complex during the first six months of 1994.
Thereafter, WTCI and DCDC demanded payment for the extra work they
performed in the construction and renovation of the sports complex. A Sanggunian
member, Councilor Augustus Young, sponsored a resolution authorizing Osmea to
execute the supplemental agreements with WTCI and DCDC to cover the extra work
performed, but the other Sanggunian members refused to pass the resolution. Thus, the
extra work completed by WTCI and DCDC was not covered by the necessary
appropriation to effect payment, prompting them to file two separate collection cases
before the Regional Trial Court (RTC) of Cebu City. The RTC found the claims
meritorious, and ordered the City to pay for the extra work performed. The RTC likewise
awarded damages, litigation expenses and attorneys fees in the amount of
P2,514,255.40 to WTCI and P102,015.00 to DCDC. The decisions in favor of WTCI and
DCDC were affirmed on appeal, subject to certain modifications as to the amounts due,
and have become final. To satisfy the judgment debts, the Sanggunian finally passed
the required appropriation ordinances.
During post-audit, the City Auditor issued two notices disallowing the payment of
litigation expenses, damages, and attorneys fees to WTCI and DCDC. The City Auditor
held Osmea, the members of the Sanggunian, and the City Administrator liable for the
P2,514,255.40 and P102,015.00 awarded to WTCI and DCDC, respectively, as
damages, attorneys fees, and interest charges. These amounts, the City Auditor
concluded, were unnecessary expenses for which the public officers should be held
liable in their personal capacities pursuant to the law.
Osmea and the members of the Sanggunian sought reconsideration of the
disallowance with the COA Regional Office, which, through a 2nd Indorsement dated
April 30, 2003, modified the City Auditors Decision by absolving the members of the
sanggunian from any liability. It declared that the payment of the amounts awarded as
damages and attorneys fees should solely be Osmeas liability, as it was him who
ordered the change or extra work orders without the supplemental agreement required
by law, or the prior authorization from the Sanggunian. The Sanggunian members
cannot be held liable for refusing to enact the necessary ordinance appropriating funds
for the judgment award because they are supposed to exercise their own judgment and
discretion in the performance of their functions; they cannot be mere rubber stamps of
the city mayor.
The COA Regional Offices Decision was sustained by the COAs National
Director for Legal and Adjudication (Local Sector) in a Decision dated January 16, 2004.
Osmea filed an appeal against this Decision.
On May 6, 2008, the COA issued the assailed Decision which affirmed the
notices of disallowance. Osmea received a copy of the Decision on May 23, 2008.
Eighteen days after or on June 10, 2008, Osmea filed a motion for reconsideration of
the May 6, 2008 COA Decision.
The COA denied Osmeas motion via a Resolution dated June 8, 2009. The
Office of the Mayor of Cebu City received the June 8, 2009 Resolution of the COA on
June 29, 2009. A day before, however, Osmea left for the United States of America for
his check-up after his cancer surgery in April 2009 and returned to his office only on
July 15, 2009. Thus, it was only on July 27, 2009 that Osmea filed the present petition
for certiorari under Rule 64 to assail the COAs Decision of May 6, 2008 and Resolution
of June 8, 2009.
RULING:
Petitioners Petition for Certiorari filed under Rule 64 of the Rules of Court is
GRANTED. The respondents Decision of May 6, 2008 and Resolution of June 8, 2009
are SET ASIDE.
FACTS:
On March 31, 2004, the Sangguniang Panlungsod of Tuguegarao City passed
Resolution No. 048-2004 to authorize City Mayor Ting to acquire two parcels of land for
use as a public cemetery of the City. Pursuant to the resolution, City Mayor Ting
purchased the two parcels of land from Anselmo Almazan, Angelo Almazan and
Anselmo Almazan III. As payment, City Treasurer Garcia issued and released Treasury
Warrant No. 0001534514 dated April 20, 2004 in the sum of P8,486,027.00. On May 5,
2004, the City Government of Tuguegarao caused the registration of the sale and the
issuance of new certificates in its name.
Based on the transaction, the petitioner filed a complaint in the Office of the
Provincial Election Supervisor of Cagayan Province against City Mayor Ting and City
Treasurer Garcia, charging them with a violation of Section 261, paragraphs (v) and (w),
of the Omnibus Election Code, for having undertaken to construct a public cemetery
and for having released, disbursed and expended public funds within 45 days prior to
the May 9, 2004 election, in disregard of the prohibitions under said provisions due to
the election ban period having commenced on March 26, 2004 and ended on May 9,
2004.
City Mayor Ting denied the accusations in his counter-affidavit, but City
Treasurer Garcia opted not to answer. After investigation, the Acting Provincial Election
Supervisor of Cagayan recommended the dismissal of the complaint by a resolution
dated December 13, 2006 for the lack of merit. The COMELEC en banc adopted the
foregoing recommendation in its own resolution dated February 18, 2008 issued in E.O.
Case No. 06-14 and dismissed the complaint for lack of merit, holding that the
acquisition of the two parcels of land for a public cemetery was not considered as within
the term public works; and that, consequently, the issuance of Treasury Warrant No.
0001534514 was not for public works and was thus in violation of Section 261 (w) of the
Omnibus Election Code.
Not satisfied but without first filing a motion for reconsideration, the petitioner has
commenced this special civil action under Rule 64, in relation to Rule 65, Rules of
Court, claiming that the COMELEC committed grave abuse of discretion in thereby
dismissing his criminal complaint.
The petitioner contended that the COMELEC's point of view was unduly
restrictive and would defeat the very purpose of the law; that it could be deduced from
the exceptions stated in Section 261 (v) of the Omnibus Election Code that the
disbursement of public funds within the prohibited period should be limited only to the
ordinary prosecution of public administration and for emergency purposes; and that any
expenditure other than such was proscribed by law.
For his part, City Mayor Ting claimed that the mere acquisition of land to be used
as a public cemetery could not be classified as public works; that there would be public
works only where and when there was an actual physical activity being undertaken and
after an order to commence work had been issued by the owner to the contractor.
The COMELEC stated that the petition was premature because the petitioner did
not first present a motion for reconsideration, as required by Section 1(d), Rule 13 of the
1993 COMELEC Rules of Procedure; and that as the primary body empowered by the
Constitution to investigate and prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses and malpractices, it assumed full
discretion and control over determining whether or not probable cause existed to
warrant the prosecution in court of an alleged election offense committed by any
person.
The Office of the Solicitor General (OSG) concurred with the COMELEC to the
effect that the acquisition of the land within the election period for use as a public
cemetery was not covered by the 45-day public works ban under Section 261(v) of the
Omnibus Election Code; but differed from the COMELEC as to the issuance of Treasury
Warrant No. 0001534514, opining that there was probable cause to hold City Mayor
Ting and City Treasurer Garcia liable for a violation of Section 261(w), subparagraph
(b), of the Omnibus Election Code.
Acquisition of the Lots During the Period of the Election Ban, Not Considered as
Public Works in Violation of Sec. 261 (v), Omnibus Election Code
Absent an indication of any contrary legislative intention, the term public works as
used in Section 261 (v) of the Omnibus Election Code is properly construed to refer to
any building or structure on land or to structures (such as roads or dams) built by the
Government for public use and paid for by public funds. Public works are clearly works,
whether of construction or adaptation undertaken and carried out by the national, state,
or municipal authorities, designed to subserve some purpose of public necessity, use or
convenience, such as public buildings, roads, aqueducts, parks, etc.; or, in other words,
all fixed works constructed for public use.
It becomes inevitable to conclude, therefore, that the petitioner's insistence − that
the acquisition of Lots 5860 and 5881 for use as a public cemetery be considered a
disbursement of the public funds for public works in violation of Section 261(v) of the
Omnibus Election Code − was unfounded and unwarranted.
Issuance of the Treasury Warrant During the Period of the Election Ban Violated
Section 261 (w), Omnibus Election Code
Section 261 (w) covers not only one act but two, i.e., the act under subparagraph
(a) above and that under subparagraph (b) above. For purposes of the prohibition, the
acts are separate and distinct, considering that Section 261(w) uses the disjunctive or to
separate subparagraphs (a) and (b). In legal hermeneutics, or is a disjunctive that
expresses an alternative or gives a choice of one among two or more things. The word
signifies disassociation and independence of one thing from another thing in an
enumeration. It should be construed, as a rule, in the sense that it ordinarily implies as a
disjunctive word. According to Black, too, the word and can never be read as or, or vice
versa, in criminal and penal statutes, where the rule of strict construction prevails.
Consequently, whether or not the treasury warrant in question was intended for public
works was even of no moment in determining if the legal provision was violated.
There was a probable cause to believe that Section 261(w), subparagraph (b), of
the Omnibus Election Code was violated when City Mayor Ting and City Treasurer
Garcia issued Treasury Warrant No. 0001534514 during the election ban period. For
this reason, our conclusion that the COMELEC en banc gravely abused its discretion in
dismissing E.O. Case No. 06-14 for lack of merit is inevitable and irrefragable.
True, the COMELEC, as the body tasked by no less than the 1987 Constitution
to investigate and prosecute violations of election laws, has the full discretion to
determine whether or not an election case is to be filed against a person and,
consequently, its findings as to the existence of probable cause are not subject to
review by courts. Yet, this policy of non-interference does not apply where the
COMELEC, as the prosecuting or investigating body, was acting arbitrarily and
capriciously, like herein, in reaching a different but patently erroneous result. The
COMELEC was plainly guilty of grave abuse of discretion.
Grave abuse of discretion is present when there is a capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility,
and it must be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in contemplation of law.
REFERENCE:
Riano, W. (2005). Fundamentals of Civil Procedure. 2005 edition. Retrieved from
https://books.google.com/
Santiago, M. (2015). Rules of Court Annotated. Manila, Philippines. Rex Book
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Cases:
G.R No. 184915
http://sc.judiciary.gov.ph/jurisprudence/2009/june2009/184915.htm
G.R. No. 188818
http://sc.judiciary.gov.ph/jurisprudence/2011/may2011/188818.htm
G.R. No. 182380
http://sc.judiciary.gov.ph/jurisprudence/2009/august2009/182380.htm