SPECIAL SECOND DIVISION
G.R. No. 131457 August 19, 1999
HON. CARLOS O. FORTICH, PROVINCIAL GOVERNOR OF BUKIDNON, HON. REY B. BAULA, MUNICIPAL MAYOR OF SUMILAO, BUKIDNON, NQSR MANAGEMENT AND DEVELOPMENT CORPORATION, petitioners,
vs.
HON. RENATO C. CORONA, DEPUTY EXECUTIVE SECRETARY, HON. ERNESTO D. GARILAO, SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM, respondents.
Separate Opinions
MELO, J., separate opinion;
On the merits, I still maintain my vote with Mr. Justice Puno that this case should be referred to the Court of Appeals for further proceedings.
Since what is now before us is a second motion for reconsideration, which under the rules is generally proscribed, the majority deemed it pertinent to limit its resolution in regard to cogent procedural points.
At the outset, I wish to point out that inasmuch as I am bound to abide by the Court En Banc's Resolution No. 99-109-SC dated January 2, 1999, which settled the issue of an even (2-2) vote in a division, I am constrained to vote with the majority in denying all of the subject motions in the above-captioned case. Nevertheless, I wish to express my views on this issue and put them or record, so, in the event that the Court decides to open and re-discuss this issue at some future time, these consideration may be referred to.
I continue to have some reservations regarding majority's position regarding an even (2-2) vote in a division, due to the following considerations:
By mandate of the Constitution, cases heard by a division when the required majority of at least 3 votes in the division is not obtained are to be heard and decided by the Court En Banc. Specifically, Paragraph 3, Section 4, Article VIII of the Constitution provides that:
x x x x x x x x x
(3) Cases or matters heard by a division shall e decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such members. When the required number is not obtained, the case shall be decided en banc: provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed by the court sitting en banc.
The deliberations of the 1986 Constitutional Commission disclose that if the case is not decided in a division by a majority vote, it goes to the Court En Banc and not to a longer division. Moreover, the elevation of a case to the Banc shall be automatic. Thus,
MR. RODRIGO: Madam President, may I ask some questions for clarification.
MR. PRESIDENT: Commissioner Rodrigo is recognized.
MR. RODRIGO: Under these provisions, there are 3 kinds of divisions: one would be a division composed of 3 justices in which case there will be 5 divisions; another division is composed of 5 justices each, in which case there will be 3 divisions; and the other is composed of 7 members each, in which case, there will be 2 divisions.
Let us take the smallest division of 3 and the vote is 2-1. So, it is less than 3 votes. Should it immediately go to the court en banc of 15 justices or should it first go to a bigger division?
MR. CONCEPCION: Yes.
MR. RODRIGO: They immediately go to the court en banc?
MR. SUAREZ: Yes, Madam President.
MR. RODRIGO: Is that automatic? Let us say that in the division of 3, the vote is 2-1, automatically it goes to the court en banc?
MR. SUAREZ: Yes, because the required number of 3 is not obtained. So, this last phrase would operate automatically — "WHEN THE REQUIRED NUMBER IS NOT OBTAINED, THE CASE SHALL BE DECIDED EN BANC."
x x x x x x x x x
(V Record 635, Oct. 8, 1986)
Explicit, therefore, is the requirement that at least 3 members must concur in any case or matter heard by a division. Failing thus, or, when the required number of 3 votes is not obtained, the case or matter will have to be decided by the Court En Banc.
In a situation where a division of 5 has only 4 members, the 5th member having inhibited himself or is otherwise not in a position to participate, or has retired, a minimum of 3 votes would still be required before there can be any valid decision or resolution by that division. There may, then, be instances when a deadlock may occur, i.e., the votes tied at 2-2. It is my humble view that under the clear and unequivocal provisions of the 1986 Constitution, if the required majority is not reached in a division, the case should automatically got to the Court En Banc.
A distinction has been made between "cases" and "matters" referred to in the above-quoted constitutional provision.ℒαwρhi৷ "Cases" being decided, and "matters" being resolved. Only "cases" are referred to the Court En Banc for decision whenever the required number of votes is not obtained Matters" are not referred anymore.
I regret I cannot square with such position.
The majority view is that "cases" would only refer to deliberations at first instance on the merits of a case filed with the Court, and other deliberations, such as motions, including motions of reconsideration, are "matters" to be resolved. To give flesh to this distinction, it is cited that if a tie occurs in the voting on motions for reconsideration, the decision which already been passed stands.
This is not true all the time. It may be true only in original cases, as opposed to appealed cases, filed with the Court. However, because of the doctrine of hierarchy of courts, to only original cases which are taken cognizable of by this Court are those wherein it has exclusive jurisdiction. But, invariably, these cases are all required by the Constitution to be heard by the Court En Banc. so, there will be no instance when a division will be ever taking cognizance of an original actions filed with this Court.
It may be noted that cases taken cognizable of by the divisions are either petitions for review on certiorari under Rule 45 or petitions for certiorari, prohibition or mandamus, under Rule 65. Under Rule 45, appeal by way of petition for review on certiorari is not a matter of right. Thus, should there be a tie in the voting on deliberation of a "case" by the division, although apparently no action is passed, a decision may still be rendered — the petition is thereby DENIED due course, and it is forthwith DISMISSED. This is definitely in consonance with the majority's line of reasoning in the 2-2 vote on motions for reconsideration. But why is it that, the 2-2 vote in the deliberation of the "case" at the first instance should still be referred to the Court En Banc? The reason is simple. Because the express provision of the Constitution requires a vote of at least three justices for there to be a valid and binding decision of the Court. But, why do we not apply the same rule to motions for reconsideration? Even on this score alone, it is my view that, in all instances, whether it be in the deliberations of a case at first instance or on a motion for reconsideration, a division having a 2-2 vote cannot pass action.1âwphi1.nęt
I submit that the requirement of 3 votes equally applies to motions for reconsideration because the provision contemplates "cases" or "matters" (which for me has no material distinction insofar as divisions are concerned) heard by a division, and a motion for reconsideration cannot be divorced from the decision in a case that it seeks to be reconsidered. Consequently, if the required minimum majority of 3 votes is not met, the matter of the motion for reconsideration has to be heard by the Court En Banc, as mandated by the Constitution (par. 3, Sec. 4, Art. VIII). To say that the motion is lost in the division on 2-2 vote, is to construe something which cannot be sustained by a reading of the Constitution. To argue that a motion for reconsideration is not a "case" but only a "matter" which does not concern a case, so that, even through the vote thereon in the division is 2-2, the matter or issue is not required to elevated to the Court En Banc, is to engage in a lot of unfounded hairsplitting.
Furthermore, I humbly submit that the theory of leaving the issue hanging on a 2-2 vote or any even vote may be sustained only in cases where there is no recourse to a higher assemblage.
In the Court of Appeals, for instance, an even vote in a division of 5 (2-2, with 1 abstaining) would result in the motion not being carried, but only because there is and there cannot be recourse to the Court of Appeals En Banc which, does not act on judicial matters. In a legislative body, an even vote results in the failure of the proposition, only because there is no higher body which can take over. In our own Court En Banc, if there voting is evenly split, on a 7-7 vote with 1 slot vacant, or with 1 justice inhibiting or disqualifying himself, the motion shall, of course, not be carried because that is the end of the line.
But in the situation now facing us, the even vote is in a division, and there being recourse to the Court En Banc, and more so, this being expressly directed by the Constitution, the matter of the motion for reconsideration should, by all means, be decided by the Court En Banc.
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