Duterte and the Question of Substitution

We all know that Duterte did not file his certificate of candidacy during the filing period. Instead he kept denying any interest in running in the Presidential race.

Whether this is genuine or simply trying to play with the people’s mind and the loopholes of the law, they tried to play around, to which it has its own possible consequences.

Martin Diño played the safety net by filing his certificate of candidacy (COC) for the office of the President. On the day of his filing every one is well aware that there is no inherent intention for him to run but merely to secure a slot for and in behalf of Duterte who would later substitute him under Section 77 of the Omnibus Election Code which states:

“SECTION 77. Candidates in case of death, disqualification or withdrawal of another. – If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.”

Now, the question as to the validity of the substitution by Duterte is inevitable, considering the factual situations. COMELEC decided to declare that the question as to whether Martin Diño was a nuisance candidate was now moot and academic since he has withdrawn his Certificate of Candidacy already.

I do not possess the qualification to question comelec, however, I could not convince myself to agree that the comelec need not rule anymore whether Diño was a nuisance candidate or not. Since the validity of Duterte’s candidacy is rooted on the validity of the certificate of candidacy of Dino, then comelec must still decide on this matter, for if Dino falls under the category of a nuisance candidate, and is therefore disqualified then the validity of substitution is at stake.

Now for us to understand what is a Nuisance Candidate, Section 69 of the Omnibus Election Code state that:

Nuisance candidates. – The Commission may, motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate.

Dino from the start has manifested that he has no bona fide intention to run for the office of the President. Looking at his previous acts, he has no previous declarations, no preliminary planning or any thing that would signify his genuine intention to run for the said office. In fact, he even wrote running for the position of “Mayor” of “Pasay City”, a clear indication of his real intention.

Dino and his party filed the certificate of candidacy as Section 69 mentioned that is to “put the election process in mockery” by fielding another candidate only to be substituted later simply for political tactical maneuvers.

Now lets say, they can now escape this question, Dino is not a nuisance candidate as comelec declares, the next question is, was there a valid substitution?

Dino withdrew his COC on October 29, 2015, while Duterte filed his COC on November 27, 2015, almost 1 month after Diño has withdrawn his COC.

The Supreme Court in the case of Miranda vs. Abaya has clearly declared,

“The Court has no other choice but to rule that in all the instances enumerated in Section 77 of the Omnibus Election code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non.”

What are these instances in section 77? These are the instances when the candidate sought to be substituted died, disqualified or has withdrawn. It must be understood clearly though, that the existence of COC does not co-exist with the person of the candidate, such as when a candidate died, his COC still validly exist, and therefore a substitute COC may be filed as a replacement. Same is true with disqualification, a candidate maybe disqualified but it does not follow that his COC is automatically cancelled, thus substitution of a valid COC but with a disqualified candidate is possible. However, with regard to the case of withdrawal, it is quite tricky, and for an unlearned or careless mind, a fatal mistake may be committed. Common sense will clearly reveal that after withdrawing your COC, there is no more COC to speak of, therefore it follows that there is no more COC to substitute.

The SC in the case cited above simply stated “Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was.”

How then is substitution possible in case of withdrawal as stated in Sec. 77?

The only possible way is a simultaneous withdrawal of the first COC and filing of the Substitute COC, so that the cancelation and acceptance of the new COC happen on the same time or simultaneously.

After withdrawal of a COC, that COC is cancelled, so that there would be no COC to substitute later on. In the case of Duterte and Dino, the time difference is so huge.

Even with the justification that the party has declared their nomination of Duterte as substitute has no force at all. Filing of a COC is personal, it cannot be imposed upon anybody. Duterte decided to run several days after Dino’s COC has been withdrawn.

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Supreme Court on Grace Poe’s Disqualification Case

SC seems to be having a hard time deciding on the disqualification case of Presidential candidate Grace Poe. Aside from the factual and legal considerations, SC has to weigh two opposing forces, the public which is throwing its support to Grace Poe (who is leading the surveys) or to uphold the rule of law and the existing doctrines laid down by the Supreme Court itself.

If SC decides to rule in-favor of Poe’s disqualification, I could only imagine the possible public actions by her loyal supporters. There will be chaos on the streets, and expect horrendous traffic. On the other hand, ruling in favour of Poe will have serious legal implications, this will ultimately mean SC has reversed or over turned the existing jurisprudence that is renunciation of a foreign citizenship is not a mere lip service, and that public documents enjoy presumption of regularity and a person’s declarations in a public document are binding upon the declarant and is stopped from questioning the same.

The requirement that the renunciation must be made through an oath emphasizes the solemn duty of the one making the oath of renunciation to remain true to what he has sworn to. Allowing the subsequent use of a foreign passport because it is convenient for the person to do so is rendering the oath a hollow act. It devalues the act of taking of an oath, reducing it to a mere ceremonial formality (Maquiling vs. Comelec)

If the SC would rule that the subsequent use of US Passport by Grace Poe is compatible with her renunciation made previously would lead to the door of bastardization of our laws. Not only by those politicians wishing to run for public office but by everyone-renunciation will be reduced to merely a non-sense ceremonial act without any material meaning at all.

As to the issue of declaration in a public document, to agree that the claim with regard to her residency period made on her certificate of candidacy when she ran for senator, is a matter of honest mistake, then everybody can now easy make an excuse that an erroneous declaration, or wilful misdeclaration was made in honest mistake- this simply means perjury is almost inapplicable. The question would be what would be the measure of an honest mistake?

But while the Supreme Court may be caught between two strong forces-they are no less than the Supreme Court who has the last say on what the law is. SC can always get a good excuse/exit by making an exception.

Now for those who would say let the election decide if she is qualified or not, leave the decision to the people. My simple answer is, what then is the use of our laws, then let’s leave everything to the people’s decision…

Who should prevail, the millions of Filipinos supporting Grace Poe or the rule of law? The Supreme Court in the case of Miranda vs. Abaya has answered this question eloquently; “The Court cannot accede to the reasoning that this Court should now acquiesce and submit to the sovereign will of the electorate, as expressed by their votes. We should always be reminded that ours is a government of laws not of men. If this Court should fold its arms and refuse to apply the law at every clamor of the majority of the supposed constituency, where shall order and justice lie? Without the least intention to degrade, where shall people power end, and where shall law and justice begin? Would the apparent results of the canvassing of votes justify this Court in refusing to apply the law instead? The answers to the foregoing are obvious. The Court cannot choose otherwise but to exercise its sacred duty to uphold the Constitution and the laws of the Republic for and under which it exists.”