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.