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Ambil vs Comelec

Facts: Ambil was proclaimed by the Board of Canvassers as the duly elected Governor
of Eastern Samar in the May 1998 elections. Ramirez, who garnered the second
highest number of votes, filed an election protest with the Comelec. It was assigned to
the First Division. The Commissioners thereof were Guiani, Desamito, and Tancangco.
Guiani prepared a signed proposed resolution (the Guiani ponencia), wherein Desamito
dissented. Tancangco did not indicate her vote, stating that she wished to see both
positions in order to make her decision.
February 15, 2000, Guiani resigned. He was replaced by Javier.
On or about February 24, 2000, Ambil and Ramirez received a purported resolution (the
Guiani ponencia) promulgated on February 14, 2000 signed by Guiani and Tancango
with Desamito dissenting. Said resolution was in Ramirez favor.
However, on February 28, 2000, the same Comelec Division declared that the
resolution should be ignored because there was no promulgation of the Resolution in
the instant case.
March 31, 2000, the Division issued an order setting the promulgation of the resolution.
This was challenged by Ambil. Acting thereon, the Division postponed the promulgation.
Upon recommendation of Javier and Tancangco, the Division issued an order setting
the promulgation of the resolution. It was stated that what is controlling is the date in
which the ponente signed the resolution.
Without waiting for such promulgation, Ambil filed this special civil action for certiorari
and prohibition to nullify the above order and to prohibit the promulgation of the Guiani
Ramirez admits however that the resolution is not valid after Guianis resignation and
that the case must be elevated by the Division to the Comelec en banc.
Issue: WON the order setting the promulgation of the resolution was issued in grave
abuse of discretion or without jurisdiction? (mao niy issue matod pa sa SC, pero ang
real issue jud kay; WON the SC may hear a petition for certiorari questioning an order of
a Comelec Division setting the promulgation of a resolution?)
Held: No. As prescribed by the Constitution and by jurisprudence, an aggrieved party
may come to the Supreme Court through a special civil action for certiorari under Rule
64 if he proceeds from a final decision, order, or ruling by the Comelec en banc. The
Supreme Court is without power to review through certiorari an interlocutory order or

even a final resolution of a Comelec division. A certiorari under Rule 64 requires that
there be no appeal, or any plain, speedy and adequate remedy in the ordinary course of
law. As provided by the Constitution, the remedy of a party over an order, resolution, or
decision of a Comelec division is a motion for reconsideration with the Comelec en
banc. Certainly, a motion for reconsideration is a plain and adequate remedy provided
by law. Failure to follow this procedure is a ground for dismissal of the petition for
The case at bar is an election protest within the jurisdiction of the Comelec Division.
What was issued by the Division was merely an order for promulgation of the Guiani
resolution. It is a mere notice of the schedule of the promulgation. There is no decision
or resolution to speak of yet because the Guiani resolution was not promulgated.
Hence, certiorari will not prosper because the above procedure was not followed.
The instant case does not fall under any of the recognized exceptions to the rule in
certiorari cases dispensing with a motion for reconsideration prior to the filing of a
petition. In truth, the exceptions do not apply to election cases where a motion for
reconsideration is mandatory by Constitutional fiat to elevate the case to the
Comelec en banc, whose final decision is what is reviewable via certiorari before the
Supreme Court.
The Kho vs Comelec case is not applicable to the case at bar. The ruling therein was in
a situation 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. However, The Kho case
involved the denial of a Comelec division to the prayer of the petitioner therein to
elevate the case to the en banc because the petitioner proceeded from an order of
admission which is an interlocutory order (so naay order of admission, which is an
interlocutory order, nahan si party na i-elevate sa en banc kaning order of admission,
pero gi-deny sa Division). In that case, the aggrieved party had no other remedy other
than a petition for certiorari. Hence, the Kho case does not apply here.