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to declare that the question as to whether Martin Diño was a nuisance candidate was now moot and academic since he has withdrawn his Certificate of Candidacy already.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.