Whimsical

Grave abuse of discretion implies a capricious and whimsical exercise of judgment or an arbitrary and despotic exercise of power because of passion and hostility amounting to lack or excess of jurisdiction. This case of Carmel is another example.

Carmel ran as Punong Barangay of their Barangay in the October 29, 2007 elections. The result shows that she garnered 150 votes while her opponent Ely got 149 votes. So Carmel was proclaimed as the duly elected Punong Barangay by a margin of only one vote.

On November 5, 2007, Ely filed an election protest before the Municipal Trial Court (MTC) impugning the results of the canvass in two precincts. After a revision of the ballots the MTC, in a decision dated May 5, 2008, found that both Carmel and Ely garnered 151 votes and therefore ordered the drawing of lots to determine the winner.

On May 13, 2008 Carmel filed a Notice of Appeal with the MTC and paid the required appeal fee of P1,000 pursuant to Section 9, Rule 14 of the “Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials” (A.M. 07-4-15 SC).

On November 25, 2008 the First Division of COMELEC dismissed the appeal of Carmel for failure to pay the appeal fee of P3,200 fixed by Section 3 and 4, Rule 40 of the COMELEC Rules of Procedure (Resolution 8486) promulgated only on July 15, 2008 or two months after Carmel has filed her Notice of Appeal and paid the appeal fee of P1,000.

When Carmel filed a Motion for Reconsideration of said ruling on December 15, 2008 and at the same time posted Postal Money Order for P3,200 payable to the Cash Division of the COMELEC to cover the appeal fee, the COMELEC First Division still denied her motion and stuck to its dismissal of Carmel’s appeal because it was not perfected on time.

Carmel thus filed a petition for certiorari alleging among others grave abuse of discretion in dismissing her appeal and denying her motion for reconsideration. Was Carmel correct?

Yes. Considering that Carmel filed her Notice of Appeal and paid the appeal fee of P1,000 on May 13, 2008 or two months before the COMELEC issued Resolution 8486 clarifying the payment of the fees, her appeal should not be prejudiced by said Resolution. Fairness and prudence dictates that the First Division of the COMELEC should have first directed Carmel to pay the additional appeal fee of P3,200 in accordance with the clarificatory resolution and if Carmel refused to comply, only then should the appeal be dismissed. The COMELEC First Division should have been more cautious in dismissing Carmel’s appeal on the mere technicality of non-payment of the additional appeal fee of P3,200 given the public interest involved in election cases. Hence said division gravely abused its discretion in dismissing Carmel’s appeal (Barro vs. COMELEC et. al. G.R. 186201, October 9, 2009).

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