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REVIEW OF JUDGMENT AND FINAL ORDERS or RESOLUTION OF THE

COMMISSION ON ELECTION and COMMISSION ON AUDIT (RULE 64 OF THE


RULES OF COURT)

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 2. Mode of review. — A judgment or final order or resolution of the Commission


on Elections and the Commission on Audit may be brought by the aggrieved party to the
Supreme Court on certiorari under Rule 65, except as hereinafter provided. (n; Bar
Matter No. 803, 17 February 1998)

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)

Section 7. Comments of respondents. — The comments of the respondents shall be


filed in eighteen (18) legible copies. The original shall be accompanied by certified true
copies of such material portions of the record as are referred to therein together with
other supporting papers. The requisite number of copies of the comments shall contain
plain copies of all documents attached to the original and a copy thereof shall be served
on the petitioner.

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)

i. SOURCE, PURPOSE, AND IMPORTANCE


Rule 64 on the REVIEW OF JUDGMENT AND FINAL ORDERS or RESOLUTION
OF THE COMMISSION ON ELECTION and COMMISSION ON AUDIT implements the
constitutional provisions on Review of Judgments of Constitutional Commissions. It is
based on Section 7, Article IX-A of the 1987 Constitution which states:
…unless otherwise provided by this Constitution or by law, any decision, order, or ruling
of each Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty (30) days from receipt of a copy thereof.
The provision clearly indicates that judgments of the Commission may be brought to
the Supreme Court through certiorari alone. In Aratuc vs Comelec and Dario vs Mison, it
was held that this provision was interpreted by the Supreme Court to refer to certiorari
discussed in Rule 65 and not the appeal by certiorari discussed in Rule 45.
The Supreme Court pointed out in Aratuc: It is at once evident from these
constitutional and statutory modifications that there is a definite tendency to enhance
and invigorate the role of the Commission on Elections as the independent
constitutional body charged with the safe guarding of free, peaceful, and honest
elections. The framers of the New Constitution must be presumed to have a definite
knowledge of what it means to make the decisions, orders, and rulings of the
Commission “subject to the review of the SC.” And since instead of maintaining that
provision intact, it ordained that the Commission’s actuations be instead brought to the
SC on certiorari,” we cannot insist that there was no intent to change the nature of the
remedy considering that the limited scope of certiorari, compared to a review, is well-
known in remedial law.
Under Rule 64, Section 2, 1997 Rules of Civil Procedure, a judgment or final order of
the COA may be brought by an aggrieved party to the SC on certiorari under Rule 65.
Prior to the 1997 Rules of Civil Procedure, the mode of elevating cases decided by the
COA to the Supreme Court was only by petition for certiorari to the Supreme Court
under Rule 65, as provided by the 1987 Constitution. Hence, under the former rule, a
petition for review on certiorari or appeal by certiorari to the Supreme Court under rule
44 or 45 of the 1964 revised rules pf court is not allowed from any order, ruling, or
decision of the COA.
It is only through a petition of certiorari under Rule 65 that COA’s decision may be
reviewed and nullified by the SC on the ground of grave abuse of discretion or lack or
excess of jurisdiction. To implement the above constitutional provision, the SC
promulgated Rule 64. The legislative construction of the constitutional provision has
narrowed down the “scope and extent of the inquiry the court is supposed to undertake
what is strictly the office of certiorari as distinguished from review.”
In Lucman vs Dimaporo, the Court ruled that it cannot review rulings or findings of
fact of the COMELEC 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.”
In certiorari proceedings, the Court is not called upon to decide the factual issues
and the case must be decided on the undisputed facts on record. The inquiry is only
limited to whether or not the respondent tribunal had acted without or in excess of its
jurisdiction or with grave abuse of discretion.
Grave Abuse of Discretion is committed when an act is 1.) Done contrary to the
Constitution, the law or jurisprudence, or 2.) Executed “whimsically or arbitrarily” in a
manner “so patent and is gross as to amount to an evasion of a positive duty or a virtual
refusal to perform the duty enjoined,” as where the power is exercised in an arbitrary
and despotic manner because of the passion or personal hostility. An act of a court of
tribunal may constitute grave abuse of discretion when the same is performed in a
capricious or whimsical exercise of judgment amounting to lack of jurisdiction.”

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.

COURSES OF ACTION OF THE SUPREME COURT (SECTION 6)


 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.
EFFECT OF THE FILING OF PETITION (Section 8)
 Unless the Supreme Court directs otherwise, the filing of a petition
for certiorari shall not stay the execution of the judgment or final order or
resolution sought to be reviewed,

iii. CASE DIGESTS

NILO T. PATES v. COMMISSION ON ELECTIONS and EMELITA B. ALMIRANTE


G.R No. 184915
June 30, 2009
EN BANC

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.

ISSUE: whether or not the motion for reconsideration should be granted

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.

ISSUE: whether or not the motion for reconsideration should be granted


whether or not Osmea should be held solely responsible for the payment of
litigation expenses, damages, and attorneys fees to WTCI and DCDC

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.

Relaxation of procedural rules to give effect to a partys right to appeal


Several times in the past, we emphasized that procedural rules should be treated
with utmost respect and due regard, since they are designed to facilitate the
adjudication of cases to remedy the worsening problem of delay in the resolution of rival
claims and in the administration of justice. From time to time, however, we have
recognized exceptions to the Rules but only for the most compelling reasons where
stubborn obedience to the Rules would defeat rather than serve the ends of justice.
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. Where strong considerations of substantive
justice are manifest in the petition, this Court may relax the strict application of the rules
of procedure in the exercise of its legal jurisdiction.
Osmea cites the mandatory medical check-ups he had to undergo in Houston,
Texas after his cancer surgery in April 2009 as reason for the delay in filing his petition
for certiorari. Due to his weakened state of health, he claims that he could not very well
be expected to be bothered by the affairs of his office and had to focus only on his
medical treatment. He could not require his office to attend to the case as he was being
charged in his personal capacity.
We find Osmeas reasons sufficient to justify a relaxation of the Rules. Although
the service of the June 8, 2009 Resolution of the COA was validly made on June 29,
2009 through the notice sent to the Office of the Mayor of Cebu City, we consider July
15, 2009 the date he reported back to office as the effective date when he was actually
notified of the resolution, and the reckoning date of the period to appeal. If we were to
rule otherwise, we would be denying Osmea of his right to appeal the Decision of the
COA, despite the merits of his case.
Moreover, a certiorari petition filed under Rule 64 of the Rules of Court must be
verified, and a verification requires the petitioner to state under oath before an
authorized officer that he has read the petition and that the allegations therein are true
and correct of his personal knowledge. Given that Osmea was out of the country to
attend to his medical needs, he could not comply with the requirements to perfect his
appeal of the Decision of the COA.

Personal liability for expenditures of government fund when made in violation of


law
The Court finds it unjust to order the petitioner to shoulder the expenditure when
the government had already received and accepted benefits from the utilization of the
[sports complex], especially considering that the City incurred no substantial loss in
paying for the additional work and the damages awarded. Apparently, the City placed in
a time deposit the entire funds allotted for the construction and renovation of the sports
complex. The interest that the deposits earned amounted to P12,835,683.15, more than
enough to cover the damages awarded to WTCI (P2,514,255.40) and the DCDC
(P102,015.00). There was no showing that [the] petitioner was ill-motivated, or that [the
petitioner] had personally profited or sought to profit from the transactions, or that the
disbursements have been made for personal or selfish ends. All in all, the
circumstances showed that Osmea issued the change and extra work orders for the
Citys successful hosting of the Palaro, and not for any other nefarious endeavour.

ROBERT P. GUZMAN v. COMMISSION on ELECTIONS, MAYOR RANDOLPH S.


TING AND SALVACION GARCIA
G.R. No. 182380
August 28, 2009
EN BANC

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.

ISSUE: Whether or not the petition was premature;


Whether or not the acquisition of Lots during the period of the election ban was
covered by the term public works as to be in violation of Section 261 (v) of the Omnibus
Election Code; and
Whether or not the issuance of Treasury Warrant No. 0001534514 during the
period of the election ban was in violation of Section 261 (w) of the Omnibus Election
Code.
RULING:
petition for certiorari is GRANTED. The resolution dated February 18, 2008
issued in E.O. Case No. 06-14 by the Commission of Elections en banc is SET ASIDE.
The Petition Was Not Premature
The indispensable elements of a petition for certiorari are: (a) that it is directed
against a tribunal, board or officer exercising judicial or quasi-judicial functions; (b) that
such tribunal, board or officer has acted without or in excess of jurisdiction or with grave
abuse of discretion; and (c) that there is no appeal or any plain, speedy and adequate
remedy in the ordinary course of law.
The COMELEC asserts that the plain, speedy and adequate remedy available to
the petitioner was to file a motion for reconsideration vis--vis the assailed resolution, as
required in the 1993 COMELEC Rules of Procedure; and that his omission to do so and
his immediately invoking the certiorari jurisdiction of the Supreme Court instead
rendered his petition premature.
We do not sustain the COMELEC.
As a rule, it is necessary to file a motion for reconsideration in the court of origin
before invoking the certiorari jurisdiction of a superior court. Hence, a petition for
certiorari will not be entertained unless the public respondent has been given first the
opportunity through a motion for reconsideration to correct the error being imputed to
him.
The petitioner challenges only the COMELECs interpretation of Section 261(v)
and (w) of the Omnibus Election Code. Presented here is an issue purely of law,
considering that all the facts to which the interpretation is to be applied have already
been established and become undisputed. Accordingly, he did not need to first seek the
reconsideration of the assailed resolution.

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
Store

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

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