Philippine Supreme Court Resolutions > Year 2009 > August 2009 Resolutions > [G.R. No. 182150 : August 04, 2009] CHARITO P. LAO VS. THE COMMISSION ON ELECTIONS, VALERIE ANNE T. NARONA :

Quoted hereunder, for your information, is a resolution of the Court En Banc dated August 4, 2009

"G.R. No. 182150 (Charito P. Lao vs. The Commission on Elections, Valerie Anne T. Narona) - Before the Court is a petition for certiorari seeking to nullify the Resolution dated September 4, 2007 issued by the respondent Commission on Elections (COMELEC) enjoining. Judge Pablo Magdoza, Presiding Judge of the Regional Trial Court (RTC) of Bohol, Branch 48 to cease and desist from continuing with the proceedings Q[ the electoral protest filed by herein petitioner Charito P. Lao and the Resolution dated March 3, 2008 denying the Motion for Reconsideration thereof.

Private respondent Valerie Ann T. Narona was proclaimed as the Vice-Mayor elect of the Municipality of Sagbayan, Bohol, with a marginal lead of eight votes over petitioner during the May 14, 2007 elections.

Petitioner filed an electoral protest in ex abundanti cautelam before the RTC praying, among others, to declare as invalid, illegal, and null and void the proclamation of private respondent on grounds of fraud, illegal acts and irregularities, and to declare petitioner as having won in the said position.

Private respondent filed her Answer with Special Affirmative Defenses and Counterclaim with Counter-Protest alleging that the special affirmative defense is anchored on lack of jurisdiction of the court for failure of petitioner to pay cash deposit for eventual examination, verification on re-tabulation of election returns, particularly the election returns in Precinct No. 7-1A as required under Section 2, Rule 7 of A.M. No. 07-4-15-SC.

After the presentation of evidence ex pane by petitioner, the RTC issued an Order dated June 13, 2007 ruling that petitioner is not legally obliged to make a cash deposit as required under Rule 7 of A.M. No. 07-4-15-SC.

Private respondent filed a petition for certiorari, prohibition, and injunction   with prayer for preliminary injunction and/or temporary restraining order against the RTC and petitioner assailing the Order dated June 13, 2007 which denied private respondent's special affirmative defense that the RTC has no jurisdiction for failure of petitioner to pay the cash deposit as required under A.M. No. 07-4-15-SC before the COMELEC Second Division.

Petitioner asserts that cash deposit is not necessary since her electoral protest did not ask for revision, or relabulation of election returns, nor did it demand for the bringing of other documents in court as what was in her possession was an admissible evidence, i.e., carbon original copies of the election return of Precinct 7A given to the dominant party and NAMFREL, in order to prove her allegations without need of revision of ballots or retabulation or examination or verification of election returns or the bringing of some documents in court. Further, petitioner posits that the law should be liberally construed to give effect to the more important aspect of the controversy for the position of Vice-Mayor fox the Municipality of Sagbayan, Bohol.

The COMELEC Second Division granted the petition ruling that the observance of the provisions of Rule 7, Sections 1 and 2, Rule 7 of A.M. No. 07-4-15-SC is necessary.  The petitioner contested the result of the election in Precinct 7-1 A, stating that the votes of the private respondent was changed from 61 to 67 and that after the canvassing of votes from the certified correct and genuine election returns coming from the 66 precincts, she was leading by one vote over the private respondent, but after 2 hours, the result was changed, with private respondent leading by 8 votes which was allegedly the result of the manipulation of the Municipal Board of Canvassers (MBOC). Thus, the RTC needed to examine, verify and retabulate the election returns of the precincts in Sagbayan, Bohol and, if necessary, to require the revision of ballots to determine who actually won in the elections.

The COMELEC En Banc denied the petitioner's Motion for Reconsideration for utter lack of merit ratiocinating that an examination of Sections 1 and 2, Rule 7 of A.M. No. 07-4-15-SC shows the use of the words "shall" and not just "may." As a general rule, the use of the word "shall" in a statute implies that the statute is mandatory and imperative, and not in a directory sense; that the trial court handling the case is deprived of jurisdiction to entertain a protest if there is non-compliance with this specific provision; and that in certain instances, where a rigid and strict application and enforcement of election law will safeguard the popular will and prevent transgressions of suffrage and the mandate of the majority, the provisions will be given strict interpretation.

Sections 1 and 2, Rule 7 of A.M. No. 07-4-15-SC provides:

Sec. 1. Filing fees. - No protest, counter-protest or petition for quo warranto shall be accepted for filing without the payment of a filing fee in the amount of Three Thousand Pesos (P3,000.00) for each interest.
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Sec. 2. Cash deposit. - (a) In addition to the fees prescribed in the preceding section, the protestant in an election protest requiring revision of ballots or examination, verification or re-tabulation of election return., or which may require the bringing to the court copies of other election documents and paraphernalia, shall make a cash deposit with the court x x x to be paid upon the filing of the election protest (counter-protest);
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(b) Failure to make the cash deposits required within prescribed time limit sliall result   in the automatic dismissal of the protest, or counter-protest.

The COMELEC found and concluded that, under the facts obtaining in the case, there is a need of an examination, verification and retabulation of the election returns of the precincts in Sagbayan, Bohol and, if necessary, to require the revision of ballots to determine who actually won in the elections. The Court has no reason to deviate from this finding. The wordings of Sections 1 and 2, Rule 7 of A.M. No. 07-4-15-SC are clear and mandatory. The failure of the petitioner to make a cash deposit is fatal to her cause.

ACCORDINGLY, finding no grave abuse of discretion committed by the Commission on Elections, the petition for certiorari is DISMISSED."

Quisumbing, J., on official leave.