Philippine Supreme Court Resolutions > Year 2010 > February 2010 Resolutions > [G.R. No. 180867 : February 15, 2010] HON. EDWIN DE LEON OLIVAREZ, PETITIONER, VS. HON. TERESITA SANTIAGO LAZARO AND COMMISSION ON ELECTIONS, RESPONDENTS. :

Quoted hereunder, for your information, is a resolution of the  Court En Banc dated February 23, 2010

"G.R. No. 180867 - Hon. Edwin De Leon Olivarez, petitioner, versus Hon. Teresita Santiago Lazaro and Commission on Elections,respondents.


RESOLUTION


Petitioner Edwin De Leon Olivarez and respondent Teresita Santiago Lazaro were candidates for the position of Governor of the Province of Laguna in the May 14, 2007 elections. Olivarez garnered a total of 390,891 votes, while Lazaro received 425,732 votes after the official canvass of the certificates of canvass from the three (3) cities and twenty-seven (27) municipalities comprising the Province of Laguna. On June 27, 2007, the Provincial Board of Canvassers of Laguna proclaimed Lazaro as the duly elected Governor with a winning margin of 34,841 votes. On July 7, 2007, Olivarez filed an election protest before the Commission on Elections (COMELEC), docketed as EPC No. 2007-64. On July 23, 2007, Lazaro filed her Answer with Counter-Protest, to which Olivarez filed his Reply. The parties were required to file their Memoranda.

On September 13, 2007, the COMELEC 2nd Division issued an Order dismissing the election protest for failure of the protestant to adequately establish his petition. On September 26, 2007, Olivarez filed a motion for reconsideration. On October 29, 2007, the COMELEC En Banc denied the motion for reconsideration for failure of the movant to pay the prescribed fee under Section 7(f), Rule 40 of the COMELEC Rules of Procedure, as amended by COMELEC Minute Resolution No. 02-0130. Hence, the present petition for certiorari.

In his petition, Olivarez seeks the reversal of the COMELEC Order dated September 13, 2007, dismissing the election protest, as well as the Order dated October 29, 2007, denying the motion for reconsideration. He argues that the COMELEC En Banc gravely erred in rendering the Order dated October 29, 2007, for it did not comply with Section 3, Article IX-C of the 1987 Constitution. Olivarez likewise contends that the COMELEC En Banc gravely abused its discretion or acted without or in excess of jurisdiction in issuing the Order dated October 29, 2007, denying the motion for reconsideration on technicalities.

The petition lacks merit.

Section 3, Article IX-C of the 1987 Constitution provides:

SEC. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.

The foregoing rule does not require the participation of all the seven (7) Commissioners in issuing an order or decision when the COMELEC is sitting en banc. It is sufficient that there are at least four (4) Commissioners present. It is provided under Rule 3, Section 5 of the COMELEC Rules, that

SEC. 5. Quorum; Votes Required. - (a) When sitting en banc, four (4) Members of the Commission shall constitute a quorum for the purpose of transacting business. The concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution, order or ruling.

In the present case, there were five (5) Commissioners who acted on petitioner's Motion for Reconsideration. Evidently, the assailed Order dated October 29, 2007 is in accordance with Section 3, Article IX-C of the 1987 Constitution.

Next, petitioner argues that the COMELEC En Banc gravely abused its discretion in denying his Motion for Reconsideration for his failure to pay the prescribed fees, which is merely a technicality. Under Rule 19, Section 2 of the COMELEC Rules, a motion to reconsider a decision, resolution, or order, or ailing of a Division shall be filed within five (5) days from promulgation thereof. Moreover, Section 18, Rule 40 of the same Rules, provides that if the prescribed fees are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or proceeding. It must be remembered that the Order dated September 13, 2007 was received by petitioner on September 21, 2007, and the motion for reconsideration was filed on September 26, 2007. However, as petitioner admitted in his petition, and evidenced by COMELEC Receipt No. 0404385, the required fees were only paid on November 14, 2007. Since the date of the payment of the filing fee is considered the actual date of the filing of the motion for reconsideration, the same was deemed filed only on November 14, 2007, or fifty-four (54) days after the receipt of the September 13, 2007 Order on September 21, 2007. The  payment of the filing fee is a jurisdictional requirement and non-compliance is a valid basis for dismissal of the case. Finding no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the COMELEC En Banc, the instant petition must be dismissed

WHEREFORE, the petition is DISMISSED for lack of merit."

 Peralta, J., on official leave.