Majority of All Members: How Comelec En Banc Votes Are Counted Under the Constitution

The Commission on Elections decides election cases — from candidate disqualifications to disputes over mayoral proclamations — sitting either in division or en banc. How many votes an en banc decision needs is not a technicality. It determines whether an order stands or falls, and whether a candidate takes or keeps office. In Estrella v. Commission on Elections (G.R. No. 160465, May 27, 2004), the Supreme Court settled that question by abandoning an older doctrine and returning to the plain text of the Constitution.

The race for mayor of Baliwag

The case began as a local election dispute. Romeo M. Estrella sought to nullify a Status Quo Ante Order issued by the Comelec en banc on November 5, 2003 in an electoral case against Rolando F. Salvador. A regional trial court had earlier declared Estrella the duly elected mayor of Baliwag, Bulacan, and had issued a writ of execution to enforce that decision. The Comelec en banc order directed the parties to maintain the condition prevailing before that writ.

Five of the seven incumbent commissioners took part. Four voted to issue the order; one dissented. Among the four was Commissioner Ralph C. Lantion, who had earlier inhibited himself in a related case pending before the Comelec Second Division involving the same parties. A substitute had been designated for him in that division case, and the substitution order was later adopted in the en banc case.

The problem with a partial inhibition

In its April 28, 2004 Resolution, the Court held that Commissioner Lantion's voluntary inhibition could not be piecemeal. Nothing in the Comelec Rules allows a commissioner to inhibit with reservation — to step aside in a division case but then vote when the same matter reaches the en banc. Allowing that, the Court said, was not only judicially unethical but legally improper and absurd.

Once Commissioner Lantion's vote was removed, only three members remained in favor of the order. The Court held that this fell short of the votes required by Rule 3, Section 5(a) of the Comelec Rules of Procedure, which requires the concurrence of a majority of the members of the Commission for the pronouncement of a decision, resolution, order, or ruling. The Status Quo Ante Order was nullified, and the Resolution was declared immediately executory.

Why Cua was abandoned

Salvador moved for reconsideration, relying on Cua v. Commission on Elections (156 SCRA 582 [1987]). In Cua, the Court had upheld a 2-1 decision of a Comelec division under Article IX-A, Section 7 of the Constitution, and had also treated the votes of the three members who affirmed that decision as a valid majority of the five who deliberated en banc.

The Court rejected that reading. Rule 3, Section 5(a) of the Comelec Rules was lifted from Article IX-A, Section 7 of the 1987 Constitution, which provides that each Commission shall decide by a majority vote of all its members any case or matter brought before it. The text is unqualified. Under settled rules of statutory construction, constitutional provisions are assumed to express the objective sought to be attained, and the phrase "all of its members" must be read as written.

Counting Commissioner Lantion's vote out left only three votes out of all seven members. Three is not a majority of seven. The Court noted that even former Constitutional Commissioner Joaquin Bernas, S.J., had questioned the Cua ruling on this ground.

A telling contrast with the Supreme Court's own rule

The Court drew a sharp contrast with Article VIII, Section 4(2) of the Constitution, which governs the Supreme Court itself. For certain cases, that provision requires the concurrence of a majority of the members who actually took part in the deliberations and voted. Had the framers intended the same rule for the constitutional commissions, the Court reasoned, they would have said so in the same words.

They did not. Article IX-A, Section 7 speaks of all members — not those who showed up, not those who deliberated, and not those who chose to vote. The Court expressly abandoned the doctrine in Cua and denied reconsideration.

Practical takeaways

• The baseline is all members. An en banc decision of the Comelec requires the concurrence of a majority of all its members, not merely a majority of those who participated or deliberated.
• With seven members, four votes are needed. A three-vote plurality does not carry an en banc ruling, even if it is the largest bloc among those voting.
• Inhibition must be complete. A commissioner cannot inhibit in a division case and then vote on the same matter en banc. Partial or reserved inhibition is not recognized under the Comelec Rules.
• A vote cast without authority can void an order. Removing an improperly participating commissioner's vote can drop a ruling below the required threshold and nullify it.
• The ruling is immediately executory. The Court stressed that its Resolution took effect at once, underscoring how quickly the composition of a collegial body can change the legal outcome.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.