The case before the Court is a special civil action for certiorari and prohibition with preliminary injunction or temporary restraining order seeking to nullify the order dated June 15, 2000 of the Commission on Elections (Comelec), First Division,^[1] giving notice to the parties of the promulgation of the resolution on the case entitled Jose T. Ramirez, Protestee, versus Ruperto A. Ambil, Jr., Election Protest Case No. 98-29, on June 20, 2000, at 2:00 in the afternoon and to prohibit the respondent Commission on Election from promulgating the so called "Guiani ponencia."^[2]

The facts are as follows:

Petitioner Ruperto A. Ambil, Jr. and respondent Jose T. Ramirez were candidates for the position of Governor, Eastern Samar, during the May 11, 1998 elections.^[3] On May 16, 1998, the Provincial Board of Canvassers proclaimed Ruperto A. Ambil, Jr. as the duly elected Governor, Eastern Samar, having obtained 46,547 votes, the highest number of votes in the election returns.

On June 4, 1998, respondent Ramirez who obtained 45,934 votes, the second highest number of votes, filed with the Comelec, an election protest^[4] challenging the results in a total of 201 precincts.^[5] The case was assigned to the First Division (formerly Second), Commission on Elections.^[6]

On January 27, 2000, Commissioner Japal M. Guiani prepared and signed a proposed resolution in the case. To such proposed ponencia, Commissioner Julio F. Desamito dissented. Commissioner Luzviminda G. Tancangco at first did not indicate her vote but said that she would "wish to see both positions, if any, to make her (my) final decision."^[7]

In the meantime, on February 15, 2000, Commissioner Guiani retired from the service. On March 3, 2000, the President of the Philippines appointed Commissioner Rufino S. Javier to the seat vacated by Commissioner Guiani. Commissioner Javier assumed office on April 4, 2000.

On or about February 24, 2000, petitioner Ambil and respondent Ramirez received a purported resolution promulgated on February 14, 2000, signed by Commissioner Guiani and Tancangco, with Commissioner Desamito dissenting. The result was in favor of respondent Ramirez who was declared winner by a margin of 1,176 votes.^[8] On February 28, 2000, the Comelec, First Division, declared that the thirteen-page resolution "is a useless scrap of paper which should be ignored by the parties in this case there being no promulgation of the Resolution in the instant case." ^[9]

On March 31, 2000, the Comelec, First Division, issued an order setting the promulgation of the resolution in the case (EPC Case No. 98-29) on April 6, 2000, at 2:00 in the afternoon.^[10] However, on April 6, 2000, petitioner Ambil filed a motion to cancel promulgation challenging the validity of the purported Guiani resolution. The Comelec, First Division, acting on the motion, on the same date, postponed the promulgation until this matter is resolved.^[11]

On June 14, 2000, two members of the First Division, namely, Commissioners Luzviminda G. Tancangco and Rufino S. Javier, sent a joint memorandum to Commissioner Julio F. Desamito, presiding Commissioner, stating:

"Pursuant to your recommendation in your April 18, 2000 Memorandum to the Commission En Banc that this case be submitted for a reconsultation by the members of the First Division, it is our position that we promulgate as soon as possible the Guiani Resolution of the case. This is notwithstanding the Jamil vs. Comelec (283 SCRA 349), Solidbank vs. IAC (G. R. No. 73777) and other doctrinal cases on the issue. After all, this Commission stood pat on its policy that what is controlling is the date the ponente signed the questioned Resolution as what we did in promulgating the case of Dumayas vs. Bernal (SPC 98-137).

"In view of the foregoing, we recommend that we proceed with the promulgation of the subject resolution and let the aggrieved party challenge it through a Motion for Reconsideration before the Commission en banc or through a certiorari case before the Supreme Court.^[12]

On June 15, 2000, the Comelec, First Division, through Commissioner Julio F. Desamito, issued an order setting the promulgation of the resolution in the case on June 20, 2000, at 2:00 o'clock in the afternoon.^[13]

Without waiting for the promulgation of the resolution, on June 19, 2000, petitioner interposed the instant petition.^[14]

Petitioner Ambil seeks to annul the order dated June 15, 2000 setting the promulgation of the resolution of the case (EPC Case No. 98-29) on June 20, 2000 at 2:00 in the afternoon, and prohibiting the Comelec, First Division, from promulgating the purported Guiani resolution and directing the Comelec, First Division, to deliberate anew on the case and to promulgate the resolution reached in the case after such deliberation.^[15]

On June 20, 2000, we issued a temporary restraining order enjoining respondent Comelec from implementing the June 15, 2000 order for the promulgation of the resolution set on June 20, 2000 at 2:00 in the afternoon. At the same time, the Court directed the respondents to comment on the petition within ten (10) days from notice. ^[16]

On July 10, 2000, respondent Ramirez filed his comment.^[17] Respondent Ramirez admitted that the proposed resolution of Commissioner Guiani was no longer valid after his retirement on February 15, 2000.^[18] He submitted that Comelec, First Division, its membership still constituting a majority, must elevate the protest case to the Comelec en banc until resolved with finality.^[19]

In his comment filed on August 29, 2000, the Solicitor General interposed no objection to the petition.^[20]

At issue in this petition is whether Comelec, First Division, in scheduling the promulgation of the resolution in the case (EPC Case No. 98-29) acted without jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.

We find the petition without merit.

To begin with, the power of the Supreme Court to review decisions of the Comelec is prescribed in the Constitution, as follows:

"Section 7. Each commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the commission or by the commission itself. 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 days from receipt of a copy thereof."^[21] [emphasis supplied]

"We have interpreted this provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers."^[22] This decision must be a final decision or resolution of the Comelec en banc,^[23] not of a division,^[24] certainly not an interlocutory order of a division.^[25] The Supreme Court has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the Commission on Elections.^[26]

The mode by which a decision, order or ruling of the Comelec en banc may be elevated to the Supreme Court is by the special civil action of certiorari under Rule 65 of the 1964 Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedure, as amended.^[27]

Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A motion for reconsideration is a plain and adequate remedy provided by law.^[28] Failure to abide by this procedural requirement constitutes a ground for dismissal of the petition.^[29]

In like manner, a decision, order or resolution of a division of the Comelec 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. The pre-requisite filing of a motion for reconsideration is mandatory.^[30] Article IX-C, Section 3, 1987 Constitution provides as follows:

"Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. [emphasis supplied]

Similarly, the Rules of Procedure of the Comelec provide that a decision of a division may be raised to the en banc via a motion for reconsideration.^[31]

The case at bar is an election protest involving the position of Governor, Eastern Samar.^[32]  It is within the original jurisdiction of the Commission on Elections in division.^[33] Admittedly, petitioner did not ask for a reconsideration of the division's resolution or final decision.^[34] In fact, there was really no resolution or decision to speak of ^[35] because there was yet no promulgation, which was still scheduled on June 20, 2000 at 2:00 o'clock in the afternoon. Petitioner went directly to the Supreme Court from an order of "promulgation of the Resolution of this case" by the First Division of the Comelec.^[36]

Under the existing Constitutional scheme, a party to an election case within the jurisdiction of the Comelec in division can not dispense with the filing of a motion for reconsideration of a decision, resolution or final order of the Division of the Commission on Elections because the case would not reach the Comelec en banc without such motion for reconsideration having been filed and resolved by the Division.

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.^[37] 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.^[38]

We are aware of the ruling in Kho v. Commission on Elections,^[39] that "in a situation such as this where the Commission on Elections in division committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending before it and the controversy did 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 as this is not permissible under its present rules but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court." This is the case relied upon by the dissenting justice to support the proposition that resort to the Supreme Court from a resolution of a Comelec Division is allowed.^[40] Unfortunately, the Kho case has no application to the case at bar. The issue therein is, may the Commission on Elections in division admit an answer with counter-protest after the period to file the same has expired?^[41] The Comelec First Division admitted the answer with counter-protest of the respondent. The Supreme Court declared such order void for having been issued with grave abuse of discretion tantamount to lack of jurisdiction.^[42] However, an important moiety in the Kho case was not mentioned in the dissent. It is that the Comelec, First Division, denied the prayer of petitioner for the elevation of the case to en banc because the orders of admission were mere interlocutory orders.^[43] Hence, the aggrieved party had no choice but to seek recourse in the Supreme Court. Such important fact is not present in the case at bar.

We must emphasize that what is questioned here is the order dated June 15, 2000, which is a mere notice of the promulgation of the resolution in EPC Case No. 98-29. We quote the order in question in full, to wit:

"Pursuant to Section 5 of Rule 18 of the COMELEC RULES OF PROCEDURE, and the Joint Memorandum of Commissioners Luzviminda G. Tancangco and Rufino S. Javier to the Presiding Commissioner of the First Division dated 14 June 2000 paragraph 5 of which states:

`In view of the foregoing, we recommend that we proceed with the promulgation of the subject resolution and let the aggrieved party challenge it through a Motion for Reconsideration before the Commission en banc or through a certiorari case before the Supreme Court.'

the promulgation of the Resolution in this case is hereby set on Tuesday, June 20, 2000 at 2:00 o'clock in the afternoon at the Comelec Session Hall, Intramuros, Manila.

No further motion for postponement of the promulgation shall be entertained.

The Clerk of the Commission is directed to give the parties, through their Attorneys, notice of this Order through telegram and by registered mail or personal delivery.

"SO ORDERED.

"Given this 15th day of June, 2000 in the City of Manila, Philippines.

	FOR THE DIVISION:
	[Sgd.] JULIO F. DESAMITO
	Presiding Commissioner"[44]

There is nothing irregular about the order of promulgation of the resolution in the case, except in the mind of suspicious parties. Perhaps what was wrong in the order was the reference to the memorandum of the two commissioners that was not necessary and was a superfluity, or excessus in linguae. All the members of the Division were incumbent Commissioners of the Commission on Elections (COMELEC) and had authority to decide the case in the Division. What appears to be patently null and void is the so-called Guiani resolution if it is the one to be promulgated. We cannot assume that the Comelec will promulgate a void resolution and violate the Constitution and the law. We must assume that the members of the Commission in Division or en banc are sworn to uphold and will obey the Constitution.

Consequently, the Guiani resolution is not at issue in the case at bar. No one knows the contents of the sealed envelope containing the resolution to be promulgated on June 20, 2000, simply because it has not been promulgated!

It may be true that the parties received a copy of what purports to be the Guiani resolution,^[45] declaring respondent Jose T. Ramirez the victor in the case. Such Guiani resolution is admitted by the parties and considered by the Commission on Elections as void. The Solicitor General submitted an advice that the same resolution is deemed vacated by the retirement of Commissioner Guiani on February 15, 2000.^[46] It can not be promulgated anymore for all legal intents and purposes.

We rule that the so-called Guiani resolution is void for the following reasons:

First: A final decision or resolution becomes binding only after it is promulgated and not before. Accordingly, 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.^[47] Much more could he be the ponente of the resolution or decision. The resolution or decision of the Division must be signed by a majority of its members and duly promulgated.

Commissioner Guiani might have signed a draft ponencia prior to his retirement from office, but when he vacated his office without the final decision or resolution having been promulgated, his vote was automatically invalidated.^[48] Before that resolution or decision is so signed and promulgated, there is no valid resolution or decision to speak of.^[49]

Second: Atty. Zacarias C. Zaragoza, Jr., Clerk of the First Division, Commission on Elections, denied the release or promulgation of the Guiani resolution. He disowned the initials on the face of the first page of the resolution showing its promulgation on February 14, 2000, and said that it was a forgery. There is no record in the Electoral Contests and Adjudication Department (ECAD) of the Commission on Election that a "resolution on the main merits of the case was promulgated."^[50]

Third: By an order dated February 28, 2000, the Comelec, First Division, disclaimed the "alleged thirteen (13) page resolution" for being "a useless scrap of paper which should be ignored by the parties" there being no promulgation of the resolution in the case.^[51]

Fourth: It is unlikely that Commissioner Tancangco affixed her signature on the Guiani resolution. On the date that it was purportedly promulgated, which was February 14, 2000, the Division issued an order where Commissioner Tancangco expressed her reservations and stated that she wished to see both positions, if any, before she made her final decision.^[52]

A final decision or resolution of the Comelec, in Division or en banc is promulgated on a date previously fixed, of which notice shall be served in advance upon the parties or their attorneys personally or by registered mail or by telegram.^[53]

It is jurisprudentially recognized that at any time before promulgation of a decision or resolution, the ponente may change his mind.^[54] Moreover, in this case, before a final decision or resolution could be promulgated, the ponente retired and a new commissioner appointed. And the incoming commissioner has decided to take part in the resolution of the case. It is presumed that he had taken the position of his predecessor because he co-signed the request for the promulgation of the Guiani resolution.^[55]

If petitioner were afraid that what would be promulgated by the Division was the Guiani resolution, a copy of which he received by mail, which, as heretofore stated, was not promulgated and the signature thereon of the clerk of court was a forgery, petitioner could seek reconsideration of such patently void resolution and thereby the case would be elevated to the Commission en banc.^[56]

Considering the factual circumstances, we speculated ex mero motu that the Comelec would promulgate a void resolution.

"The sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass."^[57] We must not speculate that the Comelec would still promulgate a void resolution despite knowledge that it is invalid or void ab initio.

Consequently, the filing of the instant petition before this Court was premature. Petitioner failed to exhaust adequate administrative remedies available before the COMELEC.

In a long line of cases, this Court has held consistently that "before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the court's judicial power can be sought. The premature invocation of court's intervention is fatal to one's cause of action."^[58]

"This is the rule on exhaustion of administrative remedies. A motion for reconsideration then is a pre-requisite to the viability of a special civil action for certiorari, unless the party who avails of the latter can convincingly show that his case falls under any of the following exceptions to the rule: (1) when the question is purely legal, (2) where judicial intervention is urgent, (3) where its application may cause great and irreparable damage, (4) where the controverted acts violate due process, (5) failure of a high government official from whom relief is sought to act on the matter, and seeks when the issue for non-exhaustion of administrative remedies has been rendered moot."^[59]

"This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. It is no less true to state that the courts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative redress has been completed and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose of the case. However, we are not amiss to reiterate that the principal of exhaustion of administrative remedies as tested by a battery of cases is not an ironclad rule. This doctrine is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the factual and circumstantial settings of a case. Hence, it is disregarded (1) when there is a violation of due process, (2) when the issue involved is purely a legal question, (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the part of the administrative agency concerned, (5) when there is irreparable injury, (6) when the respondent is a department secretary whose acts as an alter ego of the president bears the implied and assumed approval of the latter, (7) when to require exhaustion of administrative remedies would be unreasonable, (8) when it would amount to a nullification of a claim, (9) when the subject matter is a private land in land case proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention."^[60] The administrative authorities must be given an opportunity to act and correct the errors committed in the administrative forum.^[61] Only after administrative remedies are exhausted may judicial recourse be allowed.^[62]

This case does not fall under any of the exceptions and indeed, as heretofore stated, the exceptions do not apply to an election case within the jurisdiction of the Comelec in Division.

Hence, the petition at bar must be dismissed for prematurity. "Failure to exhaust administrative remedies is fatal to a party's cause of action and a dismissal based on that ground is tantamount to a dismissal based on lack of cause of action."^[63]

WHEREFORE, the Court hereby DISMISSES the petition for prematurity.

The Court orders the Commission on Elections, First Division, to resolve with all deliberate dispatch Election Protest Case No. 98-29 and to promulgate its resolution thereon adopted by majority vote within thirty (30) days from notice hereof.

The temporary restraining order issued on June 20, 2000, is hereby lifted and dissolved, effective immediately.

No costs.

SO ORDERED.

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.

---

^[1] Petition, Annex "A", Rollo, p. 36.

^[2] Which is legally invalid, infra. Petition, Rollo, pp. 5-6.

^[3] Petition, Rollo, p. 10.

^[4] Petition, Annex "C", Rollo, pp. 39-45.

^[5] Docketed as EPC Case No. 98-29.

^[6] Composed of Comm. Julio F. Desamito, presiding, Comms. Japal M. Guiani and Luzviminda G. Tancangco, members. ^[7] Petition, Annex "K", Rollo, p. 95.

^[8] Petition, Annex "D", Rollo, pp. 46-58.

^[9] Petition, Annex "H", Rollo, p. 88.

^[10] Petition, Annex "L", Rollo, p. 96.

^[11] Petition, Annex "N", Rollo, p. 104.

^[12] Petition, Annex "B", Rollo, pp. 37-38, at p. 38.

^[13] Petition, Annex "A", Rollo, p. 36.

^[14] Petition, Rollo, pp. 3-34.

^[15] Petition, Rollo, pp. 6-7.

^[16] Rollo, p. 132.

^[17] Rollo, pp. 150-169.

^[18] Comment, Rollo, at p. 152.

^[19] Comment, Rollo, at p. 153.

^[20] Rollo, pp. 330-334.

^[21] Article IX, Section 7, 1987 Constitution.

^[22] Loong v. Commission on Elections, 305 SCRA 832, 852 [1999], citing Filipino Engineering and Machine Shop v. Ferrer, 135 SCRA 25 [1985]; Aratuc v. Commission on Elections, 88 SCRA 251, 270 [1979].

^[23] Reyes v. Regional Trial Court of Oriental Mindoro, 244 SCRA 41, 45 [1995].

^[24] Reyes v. Regional Trial Court of Oriental Mindoro, supra.

^[25] Bolaong v. Comelec, First Division, 220 SCRA 745, 749 [1993].

^[26] Reyes v. Regional Trial Court of Oriental Mindoro, supra, Note 23, citing Sarmiento v. Commission on Elections, 212 SCRA 307 [1992]; Ong, Jr. v. Commission on Elections, 216 SCRA 806 [1992].26

^[27]27 Aratuc v. Commission on Elections, supra Note 22, p. 270; Dario v. Mison, 176 SCRA 84, 111 [1989].

^[28] Solis v. National Labor Relations Commission, 263 SCRA 629, 634 [1996].

^[29] Siasoco v. Court of Appeals, 303 SCRA 186, 193 [1999].

^[30] Reyes v. Regional Trial Court of Oriental Mindoro, supra, Note 21; Ong v. Commission on Elections, 216 SCRA 806 [1992]; Kho v. Commission on Elections, 344 Phil. 878 [1997]; Garvida v. Sales, 271 SCRA 767 [1997].

^[31] Rule 3, Section 5 (c) Comelec Rules of Procedure.

^[32] Petition, Annex "C", Rollo, pp. 39-45.

^[33] Constitution, Article IX-C, Sec. 3; Garvida v. Sales, supra, Note 30.

^[34] Opinion of Justice Sabino R. de Leon, Jr., p. 7.

^[35] Araneta v. Dinglasan, 84 Phil. 368, 433 [1949].

^[36] Petition, Annex "A", Rollo, p. 36.

^[37] Tan, Jr. v. Sandiganbayan, 292 SCRA 452, 457-458 [1998], cited in Opinion of Justice de Leon, Jr.; Jariol v. Commission on Elections, 270 SCRA 255, 262 [1997].

^[38] Reyes v. Regional Trial Court of Oriental Mindoro, supra, Note 23.

^[39] Supra, Note 30, at p. 888. At that time, ponente was Chairman, Commission on Elections.

^[40] Reply to Dissenting Opinion of Justice Pardo (now the majority opinion).

^[41] Kho v. Commission on Election, supra, Note 30, at p. 881.

^[42] Ibid., at p. 888.

^[43] Ibid., at p. 883.

^[44] Petition, Annex "A", Rollo, p. 36.

^[45] Petition, Annex "D", Rollo, pp. 46-58.

^[46] Comment, Solicitor General, Rollo, pp. 330-334, at p. 333.

^[47] Jamil v. Commission on Elections, 283 SCRA 349, 372 [1997].

^[48] Ibid.

^[49] Araneta v. Dinglasan, supra, Note 35, at p. 433.

^[50] Petition, Annex "J", Rollo, p. 91-94.

^[51] Petition, Annex "H", Rollo, p. 88.

^[52] Petition , Annex "K", Rollo, p. 95.

^[53] Rule 18, Section 5, Comelec Rules of Procedure.

^[54] Jamil v. Commission on Elections, supra Note 47. ^[55] Petition, Annex "B", Rollo, pp. 37-38, at p. 38.

^[56] Rule 3, Section 5 (c), Comelec Rules of Procedure [1993].

^[57] People v. Ganan, 265 SCRA 260, 290 [1996].

^[58] Union Bank of the Philippines v. Court of Appeals, 290 SCRA 198, 219 [1998], citing Paat v. Court of Appeals, 266 SCRA 167 [1997].

^[59] Jariol v. Commission on Elections, 336 Phil. 990, 997 [1997].

^[60] Paat v. Court of Appeals, 266 SCRA 167, 175-177 [1997]; Aquino-Sarmiento v. Morato, 203 SCRA 515, 520-521 [1991].

^[61] Jalandoni v. Drilon, G. R. Nos. 115239-40, March 2, 2000; University of the Philippines v. Catungal, Jr., 272 SCRA 221, 240-241 [1997].

^[62] Dimatulac v. Villon, 297 SCRA 679, 708 [1998], citing Ledesma v. Asuncion, 278 SCRA 656 [1997].

^[63] Department of Agrarian Reform Adjudication Board v. Court of Appeals, 266 SCRA 404, 417 [1997], citing Baguioro v. Basa, 214 SCRA 437 [1992].