[a]ny motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the
Commission en banc except motions on interlocutory orders of the division which shall be resolved
by the division which issued the order
this Court ruled that the authority to resolve such incidental matters fell on the division itself. The
Court went on to say that:
where the Commission 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 [which enumerates the cases in which the Comelec may sit en banc],13 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.14
In fine, Kho tells us that an interlocutory order of a Comelec division should be challenged at the first
instance through a proper motion, such as a motion for reconsideration, filed with the division that
rendered the order. If that fails and no other plain, speedy and adequate remedy (such as recourse
to the Comelec en banc) is available, the party aggrieved by the interlocutory order may elevate the
matter to the Supreme Court by means of a petition for certiorari on the ground that the order was
issued without or in excess of jurisdiction or with grave abuse of discretion.
Private respondent asserts, however, that Kho has been superseded by the more recent case
of Repol v. Commission on Elections15 from which he cites the dictum that:
[t]he Supreme Court has no power to review via certiorari an interlocutory order or even a final
resolution of a Division of the COMELEC. Failure to abide by this procedural requirement constitutes
a ground for dismissal of the action.16
Again, we disagree.
There is no contradiction between Kho and Repol that calls for the application of the doctrine that a
later judgment supersedes a prior one in case of inconsistency. In Repol, the petitioner went directly
to the Supreme Court from an interlocutory order of the Comelec First Division without first filing a
motion for reconsideration with said division. That was properly a cause for concern inasmuch as
failure to move for reconsideration of the act or order before challenging it through a petition for
certiorari often constitutes a ground for dismissal for non-compliance with the condition in Rule 65:
that resort to certiorari should be justified by the unavailability of an appeal or any other plain,
speedy and adequate remedy in the ordinary course of law. In the end, however, the Court
in Repol applied the ruling in ABS-CBN Broadcasting Corporation v. COMELEC17 that an exception
to the procedural requirement of filing a motion for reconsideration was warranted since there was
hardly enough time to move for reconsideration and obtain a swift resolution in time for the
impending elections.
A sensible reading of our decision shows that Repol was not a negation or repudiation of this Court’s
jurisdiction over petitions for certiorari from interlocutory orders rendered by a Comelec division. Had
it been so, then we would have dismissed the petition on the ground that it was beyond our
jurisdiction. Rather, this Court in Repolmerely applied the rule that a petition for certiorari must be
justified by the absence of a plain, speedy and adequate remedy in the ordinary course of law; we
said that the rule had been satisfied inasmuch as a motion for reconsideration was not a plain,
speedy and adequate remedy under the circumstances.