G.R. NO. 167033 - ESTRELITA "NENG" JULIANO, VS. COMMISSION ON ELECTIONS AND MUSLIMIN SEMA.D E C I S I O N - Supreme Court E-Library

Ruling

WHEREFORE, premises considered, the present pre-proclamation controversy praying for the nullification of the proclamation of respondent Muslimin Sema is hereby DISMISSED for lack of merit, without prejudice, however, to the filing of the proper election protest. [3] On October 23, 2004, petitioner filed a motion for reconsideration. On January 17, 2005, she filed her own Affidavit of Disavowal, stating that she never engaged the legal services of Atty. Ronald Javines (Annex "H") [4] and the Affidavit of Atty. Ronald Javines, corroborating petitioner's statement in her affidavit (Annex "I"). [5] Petitioner's motion for reconsideration was elevated to the COMELEC En Banc and Commissioner Rufino S.B. Javier was assigned as ponente. A Resolution under the ponencia of said Commissioner was issued on February 10, 2005, the dispositive portion of which reads as follows: WHEREFORE, premises considered, the Motion for Reconsideration is hereby GRANTED. The Resolution of the Commission (Second Division) promulgated last October 13, 2004 is REVERSED and SET ASIDE. The proclamation of Respondent Muslimin Sema is ANNULLED as the proceedings attendant thereto is illegal. The Election Records and Statistics Division is hereby directed to conduct an examination whether or not the one hundred eight (108) election returns involved in this case are, as claimed by the petitioner, written by one. The examination must be done within ten (10) days from receipt hereof and the ERSD should submit its report to the Commission en banc on the matter within ten (10) days from termination of the examination. Thereafter, the Commission en banc shall immediately evaluate the report and set the case for hearing if there is a need therefore. Forthwith, we shall issue a Resolution on the issue of exclusion of the contested election returns. In the meantime, the vice-mayor shall temporarily assume the position of Mayor of Cotabato City. [6] However, only three members [7] of the COMELEC En Banc voted in favor of granting the Motion for Reconsideration, three members [8] dissented, and one [9] member took no part. Section 6, Rule 18 of the Comelec Rules of Procedure provides: Sec. 6. Procedure if Opinion is Equally Divided. - When the Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied. After "re-consultation", the members chose to maintain their votes. Upon failing to obtain a majority vote on the Resolution dated February 10, 2005, the COMELEC En Banc i ssued the Order also dated February 10, 2005, the dispositive portion of which reads as follows: PREMISES CONSIDERED , after due re-consultation of the results of the en banc voting which remai