Nuisance Candidates and Crediting of Votes

nuisance         Perhaps, the “walang forever” hugot line applies even to the unscrupulous practices of political operators to field nuisance candidates with the same surnames of leading legitimate candidates. This scheme is intended to confuse a voter when he reads the ballot containing the similar names of the nuisance candidate and the legitimate candidate. The voter may shade the oval of either legitimate or nuisance candidate or he may shade both ovals to ensure that the legitimate candidate is voted for.

        In Santos vs. Comelec, 2018, G.R. No. 235058, September 04, 2018, the Supreme Court addressed these tactics or tricks of fielding nuisance candidates and issued new pronouncements to protect the legitimate candidates and the will of the electorate, to wit:

  1. Votes cast for a nuisance candidate are credited to the legitimate candidate, who have similar names, regardless whether the decision or resolution of the COMELEC in the nuisance case became final and executory before or after the elections. This rule applies to single-slot office like the Office of the Mayor or Governor. In this way, the will of the electorate is respected.
  2. In scenario where the office is a multi-slot office such as membership in the local sanggunian and the registered voter voted for the nuisance candidate, the vote cast for the nuisance candidate is credited to the legitimate candidate.
  3. In scenario where the office is a multi-slot office, such as membership in the local sanggunian and the registered voter voted for the legitimate candidate and nuisance candidate, having similar names, the vote cast for the nuisance candidate is no longer credited to the legitimate candidate, otherwise, the latter receives two votes from one voter. Only one count of vote must be added to the legitimate candidate.
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Disqualification and Application or Non-application of the Rules on Succession

disqualificationWho will take the place of a disqualified winning candidate in local elections? The answer is either (a) the candidate who obtained the highest number of votes from among the qualified candidates or (b) the vice governor/vice mayor or the highest ranking sanggunian member, as the case may be, by applying the rules on succession under the Local Government Code. The correct answer hinges on the ground for candidate’s disqualification.

Some insist and call the first answer as the “Second Placer Rule” but the Supreme Court has explained in several cases that the candidate who will take the place of a disqualified candidate is not technically a second placer since the second placer in the vote count is actually the “first placer among the qualified candidates.” As elucidated in Aratea vs. Comelec, G.R. No. 195229, October 9, 2012, a cancelled certificate of candidacy void ab initio cannot give rise to a valid candidacy, and much less to valid votes. Certificate of Candidacy and proclamation of a candidate disqualified due to ineligibility are void and produce no legal effect.

In Maquiling vs. Comelec, G.R. No. 195649, April 16, 2013, the Supreme Court had the occasion to explain why votes for eligible and legitimate candidates must be respected:

“Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate candidates form part of that voice and must also be respected.”

Let’s cut to the chase and directly discuss situations wherein a candidate who obtained the highest number of votes from among the QUALIFIED candidates takes the place of a disqualified winning candidate, to wit:

  1. A candidate for mayor who obtained the highest number of votes from among the QUALIFIED candidates took the place of a disqualified winning candidate. The disqualification is for violating the three-term limit rule (Aratea vs. Comelec, G.R. No. 195229, October 9, 2012).
  2. A candidate for mayor who obtained the highest number of votes from among the QUALIFIED candidates took the place of a disqualified winning candidate. The disqualification is for failure to renounce his foreign citizenship (Maquiling vs. Comelec, G.R. No. 195649, April 16, 2013).
  3. A candidate for mayor who obtained the highest number of votes from among the QUALIFIED candidates took the place of a disqualified winning candidate. The disqualification is for failing to meet the residency requirement (Hayudini vs. Comelec, G.R. No. 207900, April 22, 2014).

As regards the second answer, the Supreme Court in Ejercito vs. Comelec, G.R. No. 212398, November 25, 2014, clarified that the rules on succession under the Local Government Code apply when a candidate was disqualified, not because of any ineligibility existing at the time of filing of his Certificate of Candidacy but for violating the rules of candidacy such as having over-spent in his campaign.

In Ejercito, the elected and proclaimed vice governor succeeded and assumed the position of governor after gubernatorial candidate Emilio Ramon “E.R.” P. Ejercito was disqualified due to campaign overspending.  Gubernatorial candidate Emilio Ramon “E.R.” P. Ejercito was not considered non-candidate by reason of his disqualification since he had a valid Certificate of Candidacy which was never cancelled.  Suffice it to state that when the disqualification of the candidate bears no relation to his eligibility, the vacancy will be filled up by applying the rules on succession under the Local Government Code.

 

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New Book on Katarungang Pambarangay Released

          Central Book Supply, Inc. (Central Books), the exclusive publisher of Supreme Court Reports Annotated (SCRA), has released the new book of Atty. Erwin M. Enad titled “Reviewer on Katarungang Pambarangay”.

          Prbook-promo.jpgesented in a question-and-answer format, the latest publication discusses the pronouncements of the Supreme Court and opinions of the Department of Justice and Department of the Interior and Local Government on issues affecting the barangay justice system.  

          “Barangay officials and members of the Lupon will find the Reviewer a handy source of information whenever issues or queries arise concerning the scope and procedures of the Katarungang Pambarangay,” DOJ Secretary Menardo I. Guevarra stated in his book message.

           DILG Secretary Eduardo M. Ano welcomes the publication of the book as this will “serve as a guide to the Lupon Tagapamayapa on the structures, procedures, application of the Katarungang Pambarangay Law for a more effective resolution of barangay disputes.”

          The “Reviewer on Katarungang Pambarangay” is now available at all branches of Central Books nationwide.

CENTRAL BOOKS OUTLETS – QUEZON CITY: G/F Phoenix Bldg., 927 Quezon Avenue, Quezon City (Tel.: +63372 3550 ext. 31 – MANILA: Ever Gotesco Manila Plaza Mall, Recto Avenue, Manila (Tel.: +63 734 6178) – MAKATI: Lyceum of Makati, 109 SDC Building, Leviste Street, Brgy. Bel Air, Makati City (Tel +63 887 5245) – SM MEGA MALL: 5th Level, Building A, SM Megamall, Ortigas Center, Mandaluyong City (Tel.: +63 638 1088) – CEBU: GV Building, P. Del Rosario Street, Cebu City (Tel.: +32 253 0784) – DAVAO: 19-A Building D. Aldevinco Shopping Center, Roxas Avenue, Davao City (Tel.: +82 224 1070).

For online purchase, visit http://central.com.ph/bookstoreplus/products/AAC946/

 

 

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New Law on Gift Certificates or Gift Checks

          It is a holiday season and that means we are recipients or most likely recipients of gift certificates or gift checks from generous hearts.  Along with our annual anticipation of gift certificates or gift checks is the inquiry on whether or not gift certificates or gift checks have expiry dates. Fear no more for we now have consumer-friendly Republic Act No. 10962 otherwise known as “Gift Check Act of 2017” signed by President Rodrigo Roa Duterte on December 19, 2017.  

          Salient features of the new law are as follows:

  • The new law enumerates three unlawful acts: (a) issuing a gift certificate or check that bears an expiry date; (b) imposing an expiry date on the stored value, credit or balance of the gift certificate or gift check; or (c) refusing to honor the unused value of the gift certificate or gift check.
  • Gift certificate or gift check remains valid until the cessation of business of the issuer. The law applies to promotional programs, warranties, return policies and senior citizens and persons with disability discounts. The law also applies on goods ad services acquired or paid with gift checks.
  • Excluded from the coverage are gift certificates or gift checks issued to consumers including, but not limited to, those under loyalty rewards, or promotional programs, as determined by the DTI. Excluded also are coupons or vouchers that entitle the holder to a discount off a particular good or service or that may be exchanged for a pre-identified good or service.
  • Violators are required to return the unused balance of the gift check or certificate within ninety (90) days from the declaration of the violation by the DTI. Violators are slapped with a fine at least five hundred thousand pesos (P500,000.00) or not more than one million pesos (P1,000,000.00).
  • The new law, however, provides instances where issuers may refuse to honor gift certificates or gift checks, to wit: (a) when the gift certificate or gift check is lost due to no fault of the issuer; or  (b) when the gift certificate or gift check is mutilated due or defaced due to no fault of the issuer and such damage prevents the issuer from identifying the security and authenticity features thereof.

          Joyeux Noël et Bonne Année!

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Abandonment of the Doctrine of Condonation and Recent Clarifications

          In 2015, we bade farewell to the “Doctrine of Condonation” when the Supreme Court struck down the said legal principle in Carpio-Morascream - cartoonles vs. CA.  Though already abandoned, the Supreme Court in Giron vs. Ochoa (2017), Almario-Templonuevo vs. Office of the Ombudsman (2017) and Office of the Ombudsman vs. Vergara (2017) made some clarifications as regards the scope of the doctrine’s applicability.

          To recall, the elective official’s re-election serves as condonation of his previous misconduct, thereby cutting the right to remove him therefor. Administrative offenses of an elected official are deemed forgiven when the voters decide to re-elect him for another term. Under the doctrine, reelection of a public official renders moot and academic the imposition of administrative sanctions against him.

          In abandoning the doctrine, the Supreme Court explained that no presumption exists that the voters have knowledge of the public official’s life and character, including his previous misconduct when they reelected him to office. In fact, most corrupt acts by public officials are concealed in public and can easily be covered up. To quote the Supreme Court, “there could be no condonation of an act that is unknown.”

          Effectivity-wise, the ruling of the Supreme Court in Carpio-Morales is prospective in nature or only applicable to future cases. This means that if an administrative case “transpired” prior to the Carpio-Morales ruling, the doctrine may still be applied. If I may quote the Supreme Court in Vergara:

          “The above ruling, however, was explicit in its pronouncement that the abandonment of the doctrine of condonation is prospective in application, hence, the same doctrine is still applicable in cases that transpired prior to the ruling of this Court in Carpio Morales v. CA and Jejomar Binay, Jr.”

          Let us summarize and harmonize the rulings of the Supreme Court in Carpio-Morales vs. CA (2015), Giron vs. Ochoa (2017), Almario-Templonuevo vs. Office of the Ombudsman (2017) and Ombudsman vs. Vergara (2017), to wit:

  1. The abandonment of the doctrine is prospective in application. The doctrine is not applicable in cases that “transpired” prior to the Carpio-Morales. 
  2. In Giron and Almario-Templonuevo, the Supreme Court explained that the doctrine applies to a public officer who was elected to a different position provided that it is shown that the body politic electing the person to another office is the same. This Almario-Templonuevo ruling in relation to the invocation of the doctrine can still be a good defense on the part of the public official concerned if his case transpired prior to the Carpio-Morales ruling.
  3. In Office of the Ombudsman vs. Vergara, the Supreme Court recognized the applicability of the doctrine even if the re-election be on another public office or on an election year that is not immediately succeeding the last, as long as the electorate that re-elected the public official be the same. To invoke this Vergara ruling, the administrative cases must have transpired prior to the pronouncement of the Supreme Court in Carpio-Morales.

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To Count or Not to Count the Vice Governor

 A QUALIFICATION can now be had. For purposes of determining the existence of quorum, the Vice Governor, as the Presiding Officer of the Sangguniang Panlalawigan (SP), must be counted. For purposes of ascertaining the number which constitutes as the majority vote, the Vice Governor, as the Presiding Officer of the SP, must be excluded in the counting.

It can be recalled that the Supreme Court in La Carlota City vs. Rojo, G.R. No. 181367, April 24, 2012, addressed the issue on whether or not the Vice Governor should be counted in determining the existence of quorum.  In Tobias vs. Cadiao, G.R. No. 185369, August 3, 2016, the Supreme Court finally resolved the recurring issue on whether or not the Vice Governor as Presiding officer should be counted in determining the required majority to uphold legislative matter before the SP.

The settled pronouncements of the Supreme Court in Tobias vs. Cadiao can be summed up as follows:

  1. The entire membership must be taken into account in computing the quorum of the SP. Section 53 of the Local Government Code requires that the majority of “all  the members of the sanggunian” shall constitute a quorum. As a composite member in the SP, the Vice Governor is therefore included in the determination of a quorum.
  1. The Vice Governor, as Presiding Officer of SP, must not be counted in determining the required majority to uphold legislative matter before the SP. The Vice Governor is elected at large. He holds the mandate of the entire body politic or the entire province. In contrast, regular SP members are elected by district. The regular SP members hold the mandate of specific constituency, their district constituency. On the other hand, Ex-officio SP members represent their respective groups (PCL, ABC and SK).
  1. The Highest Tribunal further explained that the Vice Governor does not enjoy full rights of participation in the floors of the SP since he holds the mandate of the entire province. He does not represent any particular group. He ensures that the SP conducts its business for the general welfare of the entire province. He does not take side or cast a vote to every question put upon the body. He exercises his right to vote only in situation of deadlock or tie. He is an “embodiment of impartiality.” To quote the Supreme Court:

            “To hold that the Presiding Officer should be counted in determining the required number of votes necessary to uphold a matter before the SP shall be counter-productive. It would admit deadlocks as ordinary incidents in the conduct of business of the SP, which in effect incapacitates the said body from addressing every issue laid before it. In the process, the SP’s responsiveness, effectivity and accountability towards the affairs of the body politic would be diminished.”

It is suggested that local sanggunians should revisit their Internal Rules of Procedure (IRP) to conform with the doctrinal rules established by the Supreme Court in Tobias vs. Javier.  The issue has been examined and decided. In the order of hierarchy as regards the sources of the parliamentary rules, the judicial decisions of the Supreme Court prevail over the IRP of local sanggunians.

 

 

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Clarifying the Policy on Employment in Government Service of Filipino Citizens with Dual Citizenship

WHEN A POLICY is too restrictive or too encompassing, the best next move for the government agency or Constitutional body concerned is to issue a clarificatory Circular to address the pertinent portion of the original issuance which raised inquiries.

Case in point is CSC MC 08 s. 2017 clarifying CSC MC No. 23 s. 2016. In CSC MC 23 s. 2016, CSC issued a policy saying person with dual citizenship shall not be appointed in the government unless he/she renounces his/her foreign citizenship pursuant to the provisions of RA 9225, otherwise known as “Citizenship Retention and Re-Acquisition Act of 2003”.

CSC MC 23 s. 2016 invites inquiries because an instance can be had wherein a Filipino national can possess dual citizenship by virtue of the citizenship policy of the State where he or she was born. Take the case of the citizenship policy of U.S.A. which follows the principle of jus soli or a principle of nationality law by which citizenship is determined by place of birth.

By circumstances of your birth, you can possess American citizenship if you were born in U.S.A. even assuming you were born of Filipino parents. In this situation, you are Filipino citizen because your parents are Filipinos and you are also an American citizen because you were born in U.S.A. The pivotal question  – Is there a need for you to renounce your American citizenship if you want to be appointed in the Philippine government? This question could not be answered in CSC MC 23 s. 2016 and hence, CSC issued CSC MC 08 s. 2017 to address this situation.

CSC MC No. 08 s. 2017 clarified that CSC MC 23 s. 2016 covers only natural-born Filipinos who were naturalized in another country and later on reacquired their Filipino Citizenship. CSC MC 23 s. 2016 does not cover Filipinos who were born to Filipino parents in another State which follows the principle of jus soli or a principle of nationality law by which citizenship is determined by place of birth.

Policy clarified and inquiries arising therefrom answered.

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