Voter, qualification/ disqualification of.

"Velasco's Qualifications/Disqualifications as a Voter

Whether Velasco possesses all the qualifications and none of the disqualifications to register as a voter of Sasmuan, Pampanga is a matter that is not directly before us as his inclusion as a Sasmuan voter is not before us. As the COMELEC did, we rely on the final and executory RTC ruling excluding Velasco from the Sasmuan voters' list. We observe, however, that at the time he filed his application for registration with the COMELEC local office on October 13, 2006, Velasco was a dual citizen. The records show that Velasco renounced his American citizenship only on March 28, 2007,13 although he secured his dual citizenship status as early as July 31, 2006 at the Philippine Consulate in San Francisco, California.14 Under his dual citizenship status, he possessed the right to vote in Philippine elections through the absentee voting scheme under Republic Act No. 9189 (the Oversees Absentee Voting Law or the OAVL)15 as we ruled in Nicolas-Lewis v. COMELEC.16 In Macalintal v. COMELEC,17 we significantly said that absentee voters are exempted from the constitutional residency requirement for regular Philippine voters. Thus, the residency requirements we cited above under the VRA and the LGC do not apply to Velasco, assuming he registered as a dual citizen/absentee voter.

By law, however, the right of dual citizens who vote as absentee voters pertains only to the election of national officials, specifically: the president, the vice-president, the senators, and party-list representatives.18 Thus, Velasco was not eligible to vote as an absentee voter in the local election of 2007. In fact, the records do not show that Velasco ever registered as an absentee voter for the 2007 election.19

On the other hand, Velasco could not have registered as a regular voter because he did not possess the residency requirement of one-year stay in the Philippines and six-months stay in the municipality where he proposed to vote at the time of the election. The records show that he arrived in the Philippines only on September 14, 2006 and applied for registration on October 13 of that year20 for the election to be held in May of the following year (2007). To hark back and compare his case to a similar case, Coquilla v. COMELEC,21 Velasco, before acquiring his dual citizenship status, was an American citizen who had lost his residency and domiciliary status in the Philippines; whose sojourn in the Philippines was via a visitor's visa; and who never established permanent residence in the Philippines. Like Coquilla before him, Velasco could not have therefore validly registered as a regular voter eight months before the May 2007 local elections."


G. R. No. 180051, December 24, 2008

NARDO M. VELASCO, petitioner,
vs.
COMMISSION ON ELECTIONS and MOZART P. PANLAQUI, respondents.

https://lawphil.net/judjuris/juri2008/dec2008/gr_180051_2008.html

Voter's inclusion /exclusion proceedings

"The Voters' Inclusion/Exclusion Proceedings.

The process of voters' inclusion/exclusion, as part of the voters' registration process, is provided and defined under Sections 138, 139 and 143 of the OEC. These sections provide:

Sec. 138. Jurisdiction in inclusion and exclusion cases. - The Municipal and Metropolitan Trial Courts shall have original and exclusive jurisdiction over all cases of inclusion and exclusion of voters from the list in their respective cities or municipalities. Decisions of the Municipal or Metropolitan Trial Courts may be appealed by the aggrieved party to the Regional Trial Courts within five (5) days from receipt of notice thereof. Otherwise, said decision shall become final and executory. The regional trial court shall decide the appeal within ten (10) days from the time it is received and the decision shall become final and executory. No motion for reconsideration shall be entertained [As amended by Section 33 of Republic Act No. 8189 (RA 8189)].

Sec. 139. Petition for inclusion of voters in the list. - Any person whose application for registration has been disapproved by the Board or whose name has been stricken out from the list may file with the court a petition to include his name in the permanent list of voters in his precinct at any time except one hundred five (105) days prior to a regular election or seventy-five (75) days prior to a special election. It shall be supported by a certificate of disapproval of his application and proof of service of notice of his petition upon the Board. The petition shall be decided within fifteen (15) days after its filing.

If the decision is for the inclusion of voters in the permanent list of voters, the Board shall place the application for registration previously disapproved in the corresponding book of voters and indicate in the application for registration the date of the order of inclusion and the court which issued the same [As amended by Section 34 of RA 8189].

Section 143. Common rules governing judicial proceedings in the matter of inclusion, exclusion and correction of names of voters. -

(a) Petition for inclusion, exclusion, or correction of names of voters shall be filed during office hours;

(b) Notice of the place, date and time of the hearing of the petition shall be served upon the members of the Board and the challenged voter upon the filing of the petition. Service of such notice may be made by sending a copy thereof by personal delivery or by leaving it in the possession of a person of sufficient discretion in the residence of the challenged voter, or by registered mail. Should the foregoing procedures be not practicable, the notice shall be posted in the bulletin board of the city or municipal hall and in two (2) other conspicuous places within the city or municipality;

x x x

(c) A petition shall refer only one to one (1) precinct and implead the Board as respondents;.

(d) No costs shall be assessed against any party in these proceedings. However, if the court should find that the application has been filed solely to harass the adverse party and cause him to incur expenses, it shall order the culpable party to pay the costs and incidental expenses.

(e) Any voter, candidate or political party who may be affected by the proceedings may intervene and present his evidence.

(f) The decision shall be based on the evidence presented and in no case rendered upon a stipulation of facts. x x x

(g) The petition shall be heard and decided within ten (10) days from the date of its filing. Cases appealed to the Regional Trial Court shall be decided within ten (10) days from receipt of the appeal. In all, cases, the court shall decide these petitions not later than fifteen (15) days before the election and the decision shall be immediately final and executory. [As amended by Section 32 of RA 8189]

Inclusion/exclusion proceedings essentially involve the simple issue of whether a petitioner shall be included in or excluded from the list of voters based on the qualifications required by law and the facts presented to show possession of these qualifications."


G. R. No. 180051, December 24, 2008

NARDO M. VELASCO, petitioner,
vs.
COMMISSION ON ELECTIONS and MOZART P. PANLAQUI, respondents.

https://lawphil.net/judjuris/juri2008/dec2008/gr_180051_2008.html

Certificate of candidacy, denial or cancellation of.

"The COC Denial/Cancellation Proceedings.

Section 74, in relation with Section 78 of the OEC governs the cancellation of, and grant or denial of due course to, COCs. The combined application of these sections requires that the facts stated in the COC by the would-be candidate be true, as any false representation of a material fact is a ground for the COC's cancellation or the withholding of due course. To quote these provisions:

SEC. 74. Contents of certificate of candidacy. - The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation assumed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge.

x x x x

SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing not later than fifteen days before the election.

The false representation that these provisions mention must necessarily pertain to a material fact, not to a mere innocuous mistake. This is emphasized by the consequences of any material falsity: a candidate who falsifies a material fact cannot run; if he runs and is elected, cannot serve; in both cases, he or she can be prosecuted for violation of the election laws. Obviously, these facts are those that refer to a candidate's qualification for

elective office, such as his or her citizenship and residence.6 The candidate's status as a registered voter similarly falls under this classification as it is a requirement that, by law (the Local Government Code), must be reflected in the COC. The reason for this is obvious: the candidate, if he or she wins, will work for and represent the local government under which he is running.

Separately from the requirement of materiality, a false representation under Section 78 must consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible." In other words, it must be made with the intention to deceive the electorate as to the would-be candidate's qualifications for public office.7"


G. R. No. 180051, December 24, 2008

NARDO M. VELASCO, petitioner,
vs.
COMMISSION ON ELECTIONS and MOZART P. PANLAQUI, respondents.

https://lawphil.net/judjuris/juri2008/dec2008/gr_180051_2008.html

Grave abuse of discretion

"Grave Abuse of Discretion.

The well-settled rule is that this Court will not interfere with a COMELEC decision unless the COMELEC is shown to have committed grave abuse of discretion.4 Correctly understood, grave abuse of discretion is such "capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or [an] exercise of power in an arbitrary and despotic manner by reason of passion or personal hostility, or an exercise of judgment so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act in a manner not at all in contemplation of law."5

Velasco imputes grave abuse of discretion on the COMELEC for canceling his COC on the sole ground that he committed false representation when he claimed that he is a registered voter of Precinct No. 103-A. This imputation directly poses to us the question: was the COMELEC ruling capriciously, whimsically, and arbitrarily made?

In answering this question, we recognize at the outset that together with the cancellation of the COC that is directly before us, we have to consider the effect and impact of the inclusion/exclusion proceedings that Velasco brought before the MTC which, on appeal to the RTC, ultimately led to the denial of his listing as a voter in Sasmuan. While this inclusion/exclusion case is not before us, it was the ruling in this proceeding that the COMELEC cited as ground for the cancellation of Velasco's COC after Velasco claimed that he is a registered voter of Precinct No. 103-A of Sasmuan, Pampanga."

G. R. No. 180051, December 24, 2008

NARDO M. VELASCO, petitioner,
vs.
COMMISSION ON ELECTIONS and MOZART P. PANLAQUI, respondents.

https://lawphil.net/judjuris/juri2008/dec2008/gr_180051_2008.html

Due process in cancellation of certificate of candidacy and nullification of proclamation

"The Due Process Issue.

Finally, we see no merit in Velasco's argument that the COMELEC annulled his proclamation as Mayor without due process. The nullification of his proclamation as a winning candidate was an outcome - a necessary legal consequence - of the cancellation of his COC pursuant to Section 78 of the OEC. A COC cancellation proceeding essentially partakes of the nature of a disqualification case.22 In the present case, Velasco filed an Answer to Panlaqui's petition to cancel or deny due course to his (Velasco's) COC; hence, he was afforded the opportunity to be heard in the cancellation of his COC.

Under the combined application of Sections 623 and 724 of Republic Act No. 6646,25 candidates who are disqualified by final judgment before the election shall not be voted for and the votes cast for them shall not be counted. If the disqualification or COC cancellation/denial case is not resolved before election day, the proceedings shall continue even after the election and the proclamation of the winner.26 In the meanwhile, the candidate may be voted for and be proclaimed if he or she wins, but the COMELEC's jurisdiction to deny due course and cancel his or her COC continues. This rule applies even if the candidate facing disqualification is voted for and receives the highest number of votes,27 and even if the candidate is proclaimed and has taken his oath of office.28 The only exception to this rule is in the case of congressional or senatorial candidates with unresolved disqualification or COC denial/cancellation cases after the elections. Pursuant to Section 17 of Article VI of the Constitution, the COMELEC ipso jure loses jurisdiction over these unfinished cases in favor of the respective Senate or the House of Representatives electoral tribunals after the candidates take their oath of office.29

Under these circumstances, Velasco's claim of denial of due process is misplaced since he was given the opportunity to be heard in a proceeding that would result in the annulment of his proclamation; due process was duly served because its essence is the opportunity to be heard and this was fully given to Velasco.30

In sum, the COMELEC resolutions canceling Velasco's COC are procedurally and substantively correct, thus negating the grave abuse of discretion that Velasco alleges.

As our final point, we are aware that Velasco won the May 14, 2007 mayoralty election in Sasmuan. We recognize, too, that we have ruled in the past that a candidate's victory in the election may be considered a sufficient basis to rule in favor of the candidate sought to be disqualified if the main issue involves defects in the candidate's certificate of candidacy. We said that while provisions relating to certificates of candidacy are mandatory in terms, it is an established rule of interpretation as regards election laws, that mandatory provisions requiring certain steps before elections will be construed as directory after the elections, to give effect to the will of the people. We so ruled in Quizon v. COMELEC and Saya-ang v. COMELEC.31

The present case perhaps presents the proper time and opportunity to fine-tune our above ruling. We say this with the realization that a blanket and unqualified reading and application of this ruling can be fraught with dangerous significance for the rule of law and the integrity of our elections. For one, such blanket/unqualified reading may provide a way around the law that effectively negates election requirements aimed at providing the electorate with the basic information to make an informed choice about a candidate's eligibility and fitness for office.

The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC which specifies the basic qualifications of local government officials. Equally susceptive of being rendered toothless is Section 74 of the OEC that sets out what should be stated in a COC. Section 78 may likewise be emasculated as mere delay in the resolution of the petition to cancel or deny due course to a COC can render a Section 78 petition useless if a candidate with false COC data wins. To state the obvious, candidates may risk falsifying their COC qualifications if they know that an election victory will cure any defect that their COCs may have. Election victory then becomes a magic formula to bypass election eligibility requirements.

In the process, the rule of law suffers; the clear and unequivocal legal command, framed by a Congress representing the national will, is rendered inutile because the people of a given locality has decided to vote a candidate into office despite his or her lack of the qualifications Congress has determined to be necessary.

In the present case, Velasco is not only going around the law by his claim that he is registered voter when he is not, as has been determined by a court in a final judgment. Equally important is that he has made a material misrepresentation under oath in his COC regarding his qualification. For these violations, he must pay the ultimate price - the nullification of his election victory. He may also have to account in a criminal court for making a false statement under oath, but this is a matter for the proper authorities to decide upon.

We distinguish our ruling in this case from others that we have made in the past by the clarification that COC defects beyond matters of form and that involve material misrepresentations cannot avail of the benefit of our ruling that COC mandatory requirements before elections are considered merely directory after the people shall have spoken. A mandatory and material election law requirement involves more than the will of the people in any given locality. Where a material COC misrepresentation under oath is made, thereby violating both our election and criminal laws, we are faced as well with an assault on the will of the people of the Philippines as expressed in our laws. In a choice between provisions on material qualifications of elected officials, on the one hand, and the will of the electorate in any given locality, on the other, we believe and so hold that we cannot choose the electorate will. The balance must always tilt in favor of upholding and enforcing the law. To rule otherwise is to slowly gnaw at the rule of law.

WHEREFORE, we DISMISS the petition for lack of merit. The Status Quo Order we issued is hereby ordered IMMEDIATELY LIFTED. We DECLARE that there is no more legal impediment or obstacle to the implementation of the assailed COMELEC resolutions. No costs.

SO ORDERED."


GR No. 180051 December 24, 2008

NARDO M. VELASCO, petitioner,
vs.
COMMISSION ON ELECTIONS AND MOZART PANLAQUI.

DISQUALIFICATION of winning candidate, effect of.

"On Palileng’s Proclamation

There is no doubt as to the propriety of Palileng’s proclamation for two basic reasons.

First, the COMELEC First Division’s Resolution of 12 April 2004 cancelling Cayat’s certificate of candidacy due to disqualification became final and executory on 17 April 200421 when Cayat failed to pay the prescribed filing fee. Thus, Palileng was the only candidate for Mayor of Buguias, Benguet in the 10 May 2004 elections. Twenty–three days before election day, Cayat was already disqualified by final judgment to run for Mayor in the 10 May 2004 elections. As the only candidate, Palileng was not a second placer. On the contrary, Palileng was the sole and only placer, second to none. The doctrine on the rejection of the second placer, which triggers the rule on succession, does not apply in the present case because Palileng is not a second-placer but the only placer. Consequently, Palileng’s proclamation as Mayor of Buguias, Benguet is beyond question.

Second, there are specific requirements for the application of the doctrine on the rejection of the second placer. The doctrine will apply in Bayacsan’s favor, regardless of his intervention in the present case, if two conditions concur: (1) the decision on Cayat’s disqualification remained pending on election day, 10 May 2004, resulting in the presence of two mayoralty candidates for Buguias, Benguet in the elections; and (2) the decision on Cayat’s disqualification became final only after the elections.

Labo, Jr. v. COMELEC,22 which enunciates the doctrine on the rejection of the second placer, does not apply to the present case because in Labo there was no final judgment of disqualification before the elections. The doctrine on the rejection of the second placer was applied in Labo and a host of other cases23 because the judgment declaring the candidate’s disqualification in Labo and the other cases24 had not become final before the elections. To repeat, Labo and the other cases applying the doctrine on the rejection of the second placer have one common essential condition — the disqualification of the candidate had not become final before the elections. This essential condition does not exist in the present case.

Thus, in Labo, Labo’s disqualification became final only on 14 May 1992, three days after the 11 May 1992 elections. On election day itself, Labo was still legally a candidate. In the present case, Cayat was disqualified by final judgment 23 days before the 10 May 2004 elections. On election day, Cayat was no longer legally a candidate for mayor. In short, Cayat’s candidacy for Mayor of Buguias, Benguet was legally non-existent in the 10 May 2004 elections.

The law expressly declares that a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:

Sec. 6. Effect of Disqualification Case.— Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis added)

Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the disqualification becomes final before the elections, which is the situation covered in the first sentence of Section 6. The second is when the disqualification becomes final after the elections, which is the situation covered in the second sentence of Section 6.

The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the first situation is categorical: a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8,164 votes cast in Cayat’s favor are stray. Cayat was never a candidate in the 10 May 2004 elections. Palileng’s proclamation is proper because he was the sole and only candidate, second to none.

Labo involved the second situation covered in the second sentence of Section 6 of the Electoral Reforms Law. In Labo, the Court applied the second sentence of Section 6, and even italicized the second sentence for emphasis, thus:

x x x In the first place, Sec. 72 of the Omnibus Election Code has already been repealed by Sec. 6 of RA No. 6646, to wit:

"Sec. 6. Effect of Disqualification Case.— Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong."

A perusal of the above provision would readily disclose that the Comelec can legally suspend the proclamation of petitioner Labo, his reception of the winning number of votes notwithstanding, especially so where, as in this case, Labo failed to present any evidence before the Comelec to support his claim of reacquisition of Philippine citizenship.25 (Italicization in the original)

Cayat’s proclamation on 12 May 2004 is void because the decision disqualifying Cayat had already become final on 17 April 2004. There is no longer any need to ascertain whether there was actual knowledge by the voters of Cayat’s disqualification when they cast their votes on election day because the law mandates that Cayat’s votes "shall not be counted." There is no disenfranchisement of the 8,164 voters. Rather, the 8,164 voters are deemed by law to have deliberately voted for a non-candidate, and thus their votes are stray and "shall not be counted."

To allow a candidate disqualified by final judgment 23 days before the elections to be voted for and have his votes counted is a blatant violation of a mandatory provision of the election law. It creates confusion in the results of the elections and invites needless new litigations from a candidate whose disqualification had long become final before the elections. The doctrine on the rejection of the second placer was never meant to apply to a situation where a candidate’s disqualification had become final before the elections.

In short, the COMELEC First Division Resolution of 12 April 2004 cancelling Cayat’s certificate of candidacy, on the ground that he is disqualified for having been sentenced by final judgment for an offense involving moral turpitude, became final on 17 April 2004. This constrains us to rule against Cayat’s proclamation as Mayor of Buguias, Benguet. We also rule against Bayacsan’s petition-in-intervention because the doctrine on the rejection of the second placer does not apply to this case.

WHEREFORE, we DISMISS Rev. Fr. Nardo B. Cayat’s petitions and Feliseo K. Bayacsan’s petition-in-intervention. We AFFIRM the Resolution of the First Division of the Commission on Elections dated 12 April 2004 and the Orders dated 9 May 2004 and 25 October 2004.

SO ORDERED."


G. R. No. 163776 April 24, 2007

REV. FR. NARDO B. CAYAT, Petitioner,
vs.
COMMISSION ON ELECTIONS (FIRST DIVISION), COMMISSION ON ELECTIONS (EN BANC), and THOMAS R. PALILENG, SR., Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 165736 April 24, 2007

REV. FR. NARDO B. CAYAT, Petitioner,
vs.
COMMISSION ON ELECTIONS (FIRST DIVISION), COMMISSION ON ELECTIONS (EN BANC), and THOMAS R. PALILENG, SR., Respondents.

x- - - - - - - - - - - - - - - - - - - - - - - - - - x

FELISEO K. BAYACSAN, Intervenor.

Failure to pay FILING FEE for motion for reconsideration, effect of.

"On the Late Filing of Cayat’s Motion for Reconsideration

Cayat learned about the promulgation of the COMELEC First Division Resolution of 12 April 2004 and its contents through two separate telegrams. He narrates the circumstances of his receipt of these telegrams as follows:

10. On April 13, 2004, I took a jeepney ride to Loo, Buguias, to attend a farmers’ congress. When the jeep I was riding in made a stop in front of the Lino’s Grocery in Abatan, somebody (who was not an employee of the Telecom Office) came rushing to give me a telegram which I received. Said telegram, which I read later, informed me that the Comelec will promulgate its decision on April 12, 2004, at the Comelec Session Hall in Intramuros, Manila;

11. I could not make a trip to my lawyer in Baguio City until April 15, 2004, because he was appearing with Attorneys Samson Alcantara and Rene Gorospe before the Supreme Court which was holding oral arguments in Baguio City;

12. On April 15, 2004, at about 3:00 o’clock, I received a text message in the office of my lawyer that a telegram was served to Mr. Simon Guinid. The message was forwarded. It gave information that my Certificate of Candidacy (COC) had been canceled by the First Division of the Comelec;

x x x x15

On 16 April 2004, Cayat filed a motion for reconsideration of the Resolution of 12 April 2004 before the COMELEC en banc. Cayat alleged that although the Resolution was promulgated on 12 April 2004, he was notified by telegram only on 13 April 2004. Hence, Cayat posits, he had until 16 April 2004 to move for reconsideration.

Cayat claims that he was not served the advance notice of promulgation required in Section 7 of Resolution No. 6452,16 stating:

Promulgation. — The promulgation of a decision or resolution of the Commission or a Division shall be made on a date previously fixed, of which notice shall be served in advance upon the parties or their attorneys personally or by registered mail or by telegram or fax.

The three-day period17 from promulgation of the resolution in Section 8 of Resolution No. 6452, within which to file a motion for reconsideration, presupposes that the advance notice in Section 7 was served on Cayat.

The COMELEC sent the advance notice to Cayat by telegram to "Bayoyo, Buguias, Benguet," the address Cayat wrote on the blank space provided beside "RESIDENCE" in the Certificate of Candidacy he filed with the COMELEC.18 The COMELEC sent the telegram to Cayat before the date of promulgation. Cayat, who was traveling throughout Buguias at the time, admitted in his affidavit that on 13 April 2004, someone gave "me a telegram which I received. Said telegram which I read later, informed me that the COMELEC will promulgate its decision on April 12, 2004, at the Comelec Session Hall in Intramuros, Manila."19

Clearly, by the wordings of the telegram, the COMELEC sent the telegram to the residence address of Cayat before 12 April 2004, the date of promulgation. It is immaterial if Cayat personally received the telegram after 12 April 2004 as long as the telegram was sent and delivered before 12 April 2004 to the residence address Cayat indicated in his Certificate of Candidacy.

However, there is no point belaboring this issue, which need not even be resolved. Whether the telegram reached the residence address of Cayat before or after the date of promulgation will not affect the outcome of this case. Cayat failed to pay the prescribed filing fee when he filed his motion for reconsideration on 16 April 2004. There is no dispute that the failure to pay the filing fee made the motion for reconsideration a mere scrap of paper, as if Cayat did not file any motion for reconsideration at all.

Thus, the disqualification of Cayat became final three days after 13 April 2004, based on Cayat’s own allegation that he received the telegram only on 13 April 2004 and that he had until 16 April 2004 to file a motion for reconsideration. Clearly, the COMELEC First Division’s Resolution of 12 April 2004 cancelling Cayat’s Certificate of Candidacy due to disqualification became final on 17 April 2004, or 23 days before the 10 May 2004 elections.

On Cayat’s Failure to Pay the Filing Fee
for His Motion for Reconsideration

In an order dated 9 May 2004, the COMELEC First Division denied Cayat’s motion for reconsideration for failure to pay the required filing fee. Cayat made a fatal error: he failed to pay the required filing fee for his motion for reconsideration.

Although there is nothing in Resolution No. 6452 which mentions the need to pay a fee for filing a motion for reconsideration, Section 7 of Rule 40 of the 1993 COMELEC Rules of Procedure imposes a fee of ₱300 for filing a motion for reconsideration of a decision, order, or resolution. The succeeding section further provides that the COMELEC may refuse to take action until it is paid.

Cayat’s motion for reconsideration is merely pro forma because Cayat failed to pay the prescribed filing fee within the prescribed period.20 This brings us to the conclusion that it is as if no motion for reconsideration had been filed, resulting in the 12 April 2004 Resolution of the COMELEC’s First Division attaining finality. The COMELEC First Division’s 12 April 2004 Resolution declaring Cayat’s disqualification became final on 17 April 2004, long before the 10 May 2004 local elections."


G. R. No. 163776 April 24, 2007

REV. FR. NARDO B. CAYAT, Petitioner,
vs.
COMMISSION ON ELECTIONS (FIRST DIVISION), COMMISSION ON ELECTIONS (EN BANC), and THOMAS R. PALILENG, SR., Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 165736 April 24, 2007

REV. FR. NARDO B. CAYAT, Petitioner,
vs.
COMMISSION ON ELECTIONS (FIRST DIVISION), COMMISSION ON ELECTIONS (EN BANC), and THOMAS R. PALILENG, SR., Respondents.

x- - - - - - - - - - - - - - - - - - - - - - - - - - x

FELISEO K. BAYACSAN, Intervenor.

Rule of SUCCESSION applied in DISQUALIFICATION cases

"Second Issue:
The Lawful Mayor

In allowing Ceriola -- the second placer in the mayoralty race -- to be proclaimed mayor-elect after the disqualification of Moll, the Comelec applied Section 211(24) of the Omnibus Election Code (OEC), which provides:

"Sec. 211. Rules for the appreciation of ballots. – In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voter’s will:

x x x x x x x x x

24. Any vote cast in favor of a candidate who has been disqualified by final judgment shall be considered as stray and shall not be counted but it shall not invalidate the ballot."

The poll body interpreted the phrase "disqualified by final judgment" to mean "disqualification by a final judgment of conviction," which was the ground upon which Moll was disqualified. It ruled:

"In this case, the disqualification is based specifically on the final judgment of conviction by a court against private respondent. This final judgment disqualified private respondent from filing his certificate of candidacy in the first instance, and continues to disqualify private respondent from holding office. Accordingly, the votes cast in his favor were stray or invalid votes and the general rule in the Sunga Case does not apply. Consequently, petitioner, having obtained the highest number of valid votes, is entitled to be proclaimed the winning mayoralty candidate."11

Further, it said:

"x x x As such, this instance constitutes an exception to the general rule enunciated in the Sunga Case. In the language of the said case, the foregoing provision of law is a statute which clearly asserts a legislative policy contrary to the rule that the candidate with the second highest number of votes cannot be declared the winner, given that the votes for the disqualified candidate, though of highest number, are deemed stray and invalid. Consequently, the so-called ‘second placer’ shall be declared the winner because he or she in fact obtained the highest number of valid votes."12

Such arguments do not persuade.

In every election, the choice of the people is the paramount consideration, and their expressed will must at all times be given effect.13 When the majority speaks by giving a candidate the highest number of votes in the election for an office, no one else can be declared elected in place of the former.14 In a long line of cases, this Court has definitively ruled that the Comelec cannot proclaim as winner the candidate who obtained the second highest number of votes, should the winning candidate be declared ineligible or disqualified.15

The Comelec, however, asserts that this case falls under the exception declared by the Court in Sunga v. Comelec,16 from which we quote:

"x x x The votes cast for a disqualified person may not be valid to install the winner into office or maintain him there. But in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was qualified, they should not be treated as stray, void or meaningless."17

According to the Comelec, Section 211(24) of the OEC is a clear legislative policy that is contrary to the rule that the second placer cannot be declared winner.

We disagree.

The provision that served as the basis of Comelec’s Decision to declare the second placer as winner in the mayoral race should be read in relation with other provisions of the OEC. Section 72 thereof, as amended by RA 6646, provides as follows:

"Sec. 72. Effects of disqualification cases and priority. — The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought.

"Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office." (Italics supplied)

When read together, these provisions are understood to mean that any vote cast in favor of a candidate, whose disqualification has already been declared final regardless of the ground therefor, shall be considered stray. The Comelec misconstrued this provision by limiting it only to disqualification by conviction in a final judgment.

Obviously, the disqualification of a candidate is not only by conviction in a final judgment; the law lists other grounds for disqualification.18 It escapes us why the Comelec insists that Section 211(24) of the OEC is strictly for those convicted by a final judgment. Such an interpretation is clearly inconsistent with the other provisions of the election code.

More important, it is clear that it was only on March 19, 2003, that the Comelec en banc issued Resolution No. SPA No. 01-272. The Resolution adopted the recommendation of the provincial election supervisor of Albay to disqualify Moll from running as a mayoral candidate in Malinao, Albay. Thus, on May 14, 2001, when the electorate voted for him as mayor, they were under the belief that he was qualified. There is no presumption that they agreed to the subsequent invalidation of their votes as stray votes, in case of his disqualification.

A subsequent finding by the Comelec en banc that Moll was ineligible cannot retroact to the date of the election and thereby invalidate the votes cast for him.19

Moreover, Moll was not notoriously known to the public as an ineligible candidate. As discussed above, the Resolution declaring him as such was rendered long after the election. Thus, on the part of those who voted for him, their votes are presumed to have been cast with a sincere belief that he was a qualified candidate, and without any intention to misapply their franchise. Thus, their votes cannot be treated as stray, void, or meaningless.20

The Comelec’s interpretation of a section in the OEC cannot supplant an accepted doctrine laid down by this Court. In Aquino v. Comelec,21 we said:

"x x x To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances."22

To allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to disenfranchise them through no fault on their part, and to undermine the importance and the meaning of democracy and the right of the people to elect officials of their choice.23

Theoretically, the second placer could receive just one vote. In such a case, it would be absurd to proclaim the totally repudiated candidate as the voters’ choice. Moreover, there are instances in which the votes received by the second placer may not be considered numerically insignificant. In such situations, if the equation changes because of the disqualification of an ineligible candidate, voters’ preferences would nonetheless be so volatile and unpredictable that the results for qualified candidates would not be self-evident.24 The absence of the apparent though ineligible winner among the choices could lead to a shifting of votes to candidates other than the second placer.25 Where an "ineligible" candidate has garnered either a majority or a plurality of the votes, by no mathematical formulation can the runnerup in the election be construed to have obtained the majority or the plurality of votes cast.26

We reiterate that this Court has no authority under any law to impose upon and compel the people of Malinao, Albay, to accept Ceriola as their mayor.27 The law on succession under Section 44 of Republic Act 7160, otherwise known as the Local Government Code, would then apply. This provision relevantly states:

"SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice Mayor. —

(a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor, or vice-mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become governor, vice-governor, mayor or vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein.

x x x x x x x x x.

"For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office."

The language of the law is clear, explicit and unequivocal. Thus, it admits no room for interpretation, but merely for application.28 Accordingly, when Moll was adjudged to be disqualified, a permanent vacancy was created for failure of the elected mayor to qualify for the office.29 In such eventuality, the duly elected vice mayor shall succeed as provided by law.30

For violating the law and the clear jurisprudence on this matter, the Comelec committed grave abuse of discretion.31

WHEREFORE, the Petition in GR No 157526 is PARTLY GRANTED, and the assailed Resolution MODIFIED. Petitioner Salvador K. Moll is DECLARED ineligible for the position of municipal mayor of Malinao, Albay. In view of the vacancy created in that office, Petitioner Emiliana Toral Kare, the duly elected vice mayor, shall succeed as mayor, following the rule on succession. The status quo order of this Court dated April 1, 2003, is made permanent. Petitioner Kare shall continue discharging the duties and powers of the mayor of Malinao, Albay. The Petition in GR 157527 is DISMISSED for lack of merit.

No pronouncement as to costs.

SO ORDERED."


G. R. No. 157526 April 28, 2004

EMILIANA TORAL KARE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent

x-----------------------------x

G.R. No. 157527 April 28, 2004



SALVADOR K. MOLL, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

Criminal cases - appeal, modification of judgment.

"Moll argues that he cannot be disqualified from running for mayor, since his judgement of conviction5 -- the basis of his disqualification -- has allegedly not yet attained finality. He contends that while the said judgment "promulgated on May 11, 1999 was not appealed by filing the Notice of Appeal in the ordinary course of the proceedings, he still filed a ‘Motion for Reconsideration’ dated May 28, 1999 within the reglementary period."6 Thus, according to him, the filing of such Motion stayed the finality of his conviction.

We disagree. Section 7 of Rule 120 of the 2000 Rules of Criminal Procedure reads thus:

"Sec. 7. Modification of judgment. -- A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation." (Italics supplied)

In turn, Section 6 of Rule 122 provides:

"Sec. 6. When appeal to be taken. - An appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. This period for perfecting an appeal shall be interrupted from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion shall have been served upon the accused or his counsel at which time the balance of the period begins to run." (Italics supplied)

It is clear that the period for appeal is interrupted by the filing of either a motion for reconsideration or a motion for a new trial. Moll makes it appear that his filing of a motion for reconsideration should have stayed the running of the period for filing an appeal. What he did file, however, was a "Motion to Quash the Information"; and when it was denied, he filed a Motion for Reconsideration of the denial.

The Rules of Court mandates that an appeal should be filed within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. It necessarily follows that this period is interrupted only by the filing of a motion for reconsideration of the judgment or of the final order being appealed.

Neither Moll’s Motion to Quash Information nor his Motion for Reconsideration was directed at the judgment of conviction. Rather, they both attacked a matter extraneous to the judgment. Hence, they cannot affect the period of appeal granted by the Rules of Court in relation to the conviction.

Moll himself admitted that "no regular appeal was filed because he was still questioning the propriety of the denial of his Motion to Quash the Information and the propriety of the conduct of the promulgation of his sentence despite his absence x x x."7 Aside from not interrupting his judgment of conviction, the motion to quash was even belatedly filed. Such a motion may be filed by the accused at any time before entering a plea8 and certainly not on the day of the promulgation, as Moll did.

As to his contention that the promulgation of judgment was not valid because it was done in his absence, we agree with the Office of the Solicitor General, which argues as follows:

"It was not contested that Moll received a notice of the promulgation, in fact his counsel was present on the day of the promulgation - to file a motion to quash. Hence, because of Moll’s unexplained absence, the promulgation of the judgment could be validly made by recording the judgment in the criminal docket and serving him a copy thereof to his last known address or thru his counsel (Section 6, Rule 120, Rules of Court)."9

Indubitably, since no appeal of the conviction was seasonably filed by Moll, the judgment against him has become final.10 Thus, the Comelec en banc correctly ruled that he was disqualified from running for mayor, under Section 40(a) of the Local Government Code (RA No. 7160), which provides:

"Section 40. Disqualifications. – The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;

x x x x x x x x x."

Moll was sentenced to suffer the penalty of six (6) months of arresto mayor to one (1) year and nine (9) months of prision correccional, a penalty that clearly disqualified him from running for any elective local position."


G. R. No. 157526 April 28, 2004

EMILIANA TORAL KARE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent

x-----------------------------x

G.R. No. 157527 April 28, 2004

SALVADOR K. MOLL, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.