EN BANC
[G.R. No. 258459. August 16, 2022.][Formerly UDK-17258]
FRANCISCO JUEGOS TITO, AND PARTIDO PARA SA DEMOKRATIKONG REPORMA [PARTIDO REPORMA], REPRESENTED BY ITS CHAIRPERSON, PANTALEON D. ALVAREZ, petitioners, vs.COMMISSION ON ELECTIONS AND ALEXANDER PETALCORIN AGUSTIN, respondents. 1
NOTICE
Sirs/Mesdames :
Please take notice that the Court en banc issued a Resolution datedAUGUST 16, 2022, which reads as follows:
"G.R. No. 258459 [Formerly UDK-17258] (Francisco Juegos Tito, and Partido Para sa Demokratikong Reporma [Partido Reporma], Represented by Its Chairperson, Pantaleon D. Alvarez, Petitioners, v. Commission on Elections and Alexander Petalcorin Agustin, Respondents). — This Petition for Certiorari2 seeks to annul the Decision of the Commission on Elections (COMELEC) denying the 'Petition to Approve the Statement of Withdrawal of the Certificate of Candidacy of Alexander Petalcorin Agustin and to Give Due Course to the Certificate of Candidacy of Francisco Juegos Tito as Substitute Vice-Gubernatorial Candidate for the Province of Davao de Oro.'
Antecedents
For purposes of the May 2022 National and Local Elections (NLEs), petitioner Francisco Juegos Tito (Tito) and Alexander Petalcorin Agustin (Agustin) filed their Certificates of Candidacy (CoC) for the positions of Governor and Vice Governor, respectively, of the Province of Davao de Oro, under the banner of Partido Para sa Demokratikong Reporma (Partido Reporma).
On 03 November 2021, Tito withdrew his CoC for the position of Governor and expressed his desire to be substituted by another member of Partido Reporma. 3 Subsequently, or on 15 November 2021, Tito filed a CoC, 4 this time for the position of Vice Governor of Davao de Oro vice his party-mate, Agustin. In support thereof, Tito submitted the following documents:
(1) a Statement of Withdrawal executed by Agustin formally withdrawing his candidacy for the position of Vice Governor of Davao de Oro and naming Tito as his substitute; 5
(2) a Special Power of Attorney (SPA) signed by Agustin authorizing Tito to submit his Statement of Withdrawal before the appropriate COMELEC office; 6 and
(3) a Certificate of Nomination and Acceptance (CONA) signed by Partido Reporma Chairman Panfilo Lacson in Tito's favor. 7
Tito claims that Agustin was not able to personally file his Statement of Withdrawal as the latter had to isolate, per protocol, after having been identified as a close contact of a person who had tested positive for COVID-19. 8 AScHCD
Upon checking the COMELEC's website around 02 December 2021, Tito discovered that while his name was deleted from the list of candidates for Governor, Agustin's name was retained in the list of candidates for the position of Vice-Governor. Tito thereafter sent a letter to the COMELEC to inquire into the matter. 9
In its Document No. 21-6753, 10 the COMELEC, through its Law Department, responded and explained that Tito's withdrawal of his CoC for the position of Governor was given due course as it was compliant with all requirements. On the other hand, Agustin's withdrawal (and Tito's subsequent filing of a CoC as his substitute) for the position of Vice Governor was denied due to non-compliance with COMELEC requirements.
Specifically, the COMELEC Law Department took issue with the fact that Agustin did not personally file for the withdrawal of his CoC as required under COMELEC Resolution No. 10717. It likewise held that while filing through a representative may be allowed in some cases, the same must comply with certain requirements. In this case, and given Agustin's reason for not being able to personally file, the COMELEC required the submission of a Certification issued by the Barangay Chairperson or any other authorized office in the LGU stating that the withdrawing candidate was identified as a close contact with any person who was tested positive for COVID-19 and on quarantine or isolation, proof of identity of the representative, and a recording or CD/USB showing clearly the act of the aspirant signing the Statement of Withdrawal.
Tito subsequently filed a motion 11 to reverse or set aside the Law Department's letter with the COMELEC En Banc.
In the meantime, Partido Reporma received a letter from the COMELEC requiring it to comment on a letter dated 08 November 2021 12 allegedly sent by Agustin repudiating the CONA issued in his favor by Partido Reporma and requesting that he be declared an independent candidate.
Partido Reporma thereafter informed 13 the COMELEC that it was not notified by Agustin of said repudiation and that this being the case, Partido Reporma's right to due process has been violated. It thereby requested that the repudiation be 'treated as a mere scrap of paper' and that Partido Reporma will only accept Agustin's resignation 'so long as COMELEC accepts [petitioner] as the substitute candidate of Partido Reporma for Vice Governor in the province of Davao de Oro. Otherwise, Partido Reporma will be left with no candidate for said position.' 14
A tentative list of candidates for the May 2022 elections was again posted by the COMELEC on its website on 28 December 2021. 15 Tito's name was still not included in said list. He thus filed a motion for reconsideration but was advised by the Office of the Clerk of the COMELEC to instead file a petition which can be docketed as an election matter. Tito did so and his case was docketed as EM-22-003.
Subsequently, Tito received word that EM-22-003 was denied by the COMELEC En Banc in a Minute Resolution issued on 12 January 2022 on the following grounds: (1) the signatures of Agustin appearing on the documents are different; and (2) lack of municipal health certification on Agustin's exposure to a COVID-19 positive patient. 16
Tito requested 17 for a certification as to the fact of denial of his petition. However, given the proximity of the scheduled printing of ballots on 19 January 2022 without any definitive response forthcoming from the COMELEC on his request, Tito filed this special civil action for certiorari18 seeking to annul the COMELEC's denial of EM-22-003. He now claims that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction on the following grounds:
a. The COMELEC cannot judge for themselves whether the signature on the documents signed by Mr. Agustin was not really his as the same was notarized. Furthermore, the authenticity of those signatures are supported by the Affidavit of petitioner himself and that of Partido Demokratikong Reporma's Secretary General;
b. The issue on the authenticity of signatures of Mr. Agustin was already settled when the Affidavit of Withdrawal of Mr. Agustin and the Certificate of Candidacy of petitioner were accepted by the receiving officer of the COMELEC;
c. The Certification issued by the Vice Chairperson of the COVID-19 Task Force dated November 12, 2021 (should be December 12, 2021) is enough to comply with the requirements under pertinent COMELEC resolutions or memoranda. Municipal health certification showing the alleged exposure of Mr. Agustin to a COVID positive would be a surplusage as this would serve no further purpose;
d. The said denial upheld the previous denial by the Legal Department which is bereft of power to refuse approval of the withdrawal by Mr. Agustin of his COC and to deny due course the substitution of petitioner Tito;
e. Assuming that it is possessed with such power, the Legal Department cannot exercise the same motu propio(sic) or in the absence of any petition to deny due course and without notifying petitioner Tito in accordance with basic rules on due process; AcICHD
f. Also, the Legal Department cannot anchor said denial on reasons cited in its December 7, 2021 letter as it is not provided by law; and
g. Mr. Agustin's repudiation of his COC cannot be given adverse effect to petitioner Tito's withdrawal since it was done without the former's personal appearance and without notifying Partido Reporma or petitioner Tito as it would result to violation of Partido Reporma's right to due process and unjust deprivation to fill in a candidate for a very important office of vice-governorship. 19
Tito likewise prayed for the issuance of a writ of preliminary mandatory injunction to compel the COMELEC to include in the official ballots his name as the official candidate of Partido Reporma for the position of Vice Governor in the province of Davao de Oro.
In an Order dated 26 January 2022, this Court required 20 the COMELEC to comment on Tito's petition within a non-extendible period of ten (10) days from notice. Tito was also directed to submit a clearly legible duplicate original or certified true copy of the assailed COMELEC En Banc Resolution and to implead Agustin and Partido Reporma as parties, with the latter being given the same ten day-period to file their respective comments on the petition. In the meantime, the Court issued a temporary restraining order (TRO) enjoining the COMELEC from enforcing the assailed En Banc Minute Resolution dated 12 January 2022 in EM-22-003.
As he was still unable to secure a copy of the assailed COMELEC Resolution, Tito filed a motion 21 for extension of time to comply with the Court's directive. He claimed that while his counsel wrote the COMELEC to formally request for a copy of the resolution, the Office of the Clerk of the Commission sent a letter reply simply calling their attention to Section 2, Part IV, Rule 18 of the COMELEC Rules of Procedure and Section 5 of COMELEC Resolution No. 10673. Nevertheless, Tito committed to continue attempts to secure a copy of the assailed ruling. In due time, the Court received the Compliance 22 and Amended Petition 23 filed by Tito with Partido Reporma, represented by its President Pantaleon D. Alvarez, 24 joining as co-petitioner (hereinafter, collectively referred to as 'petitioners').
The Office of the Solicitor General (OSG), on 07 February 2022, filed via email 25 a Comment 26 on behalf of respondent COMELEC. There, it maintained that the petition merits outright dismissal as it was filed without an attached written Decision being assailed in violation of Section 1, Rule 65 and par. 3 of Supreme Court Circular No. 1-88. In any case, the COMELEC asserts that the petition raises mere errors of judgment which are clearly beyond the ambit of a petition under Rule 65. With respect to the TRO, the COMELEC stated:
50. Finally, Respondent respectfully manifests that even before the Honorable Court's issuance of the instant TRO on January 26, 2022, several pre-election activities, particularly those in preparation of the printing of the official ballots, have already commenced. It also bears stressing that there are several other crucially important pre-election activities that are likewise dependent on the timely completion of the printing of the official ballots such as: (1) the Mandatory Preparatory Logic and Accuracy Tests (Pre-LAT), which guarantees the accuracy of the vote-count; and (2) the deployment of the machine-readable official ballots all over different regions of the country.
51. It is manifested that changes in the official ballot, introduced after the serialization of the machine-readable ballots and the configuration of the SD Cards may only be implemented by redoing the whole process, starting from the generation of the ballots. Particularly, any modification or correction on the ballot would require at least eight (8) days to complete the process.
52. Given that the printing of the official ballots has already commenced, it is submitted that any adjustment, postponement or suspension on the same would be significantly detrimental to the timeliness of Respondent, which shall ultimately affect the conduct of credible elections. 27 TAIaHE
In response, petitioners filed a Motion for Leave to File Reply and to Admit Reply 28 wherein they asserted that: (1) the failure to attach a copy of the assailed Resolution was due to the fault of the COMELEC who, despite several requests, has refused to issue a copy, even after the issuance of the TRO; (2) the COMELEC's findings of forgery on the documents signed by Agustin is not merely an error of judgment, but grave abuse of discretion; (3) the requirement of a Certification from the Municipal Health Officer (to excuse personal filing of a candidate identified to be a close contact of a person who tested positive for COVID-19) has no basis in law; (4) the COMELEC's act of denying the substitution without any action, proceeding, or petition questioning the validity of said substitution is grave abuse of discretion. Finally, petitioners assert that the COMELEC's non-compliance with the Court's TRO constitutes 'willful disobedience of the lawful process or order of this Honorable Supreme Court.' They thus pray that the COMELEC be held in contempt and the ballots for the province of Davao de Oro be considered invalid for having been printed in violation of the TRO. 29
More than a month later, petitioners filed a Submission of Resolution30 furnishing the Court with a copy of an Order dated 07 March 2022 issued by the COMELEC En Banc dismissing EM-22-003. They thereafter prayed that the case now be submitted for resolution.
In said Order dated 07 March 2022, 31 the COMELEC En Banc dismissed EM-22-003 which sought the approval of Agustin's withdrawal and his substitution by Tito as the official Partido Reporma candidate for Vice Governor for the province of Davao de Oro. The COMELEC En Banc reasoned that: (1) Section 39 of COMELEC Resolution No. 10717 clearly required the withdrawing candidate to personally file his statement of withdrawal. Records showed that the Statement of Withdrawal was not filed personally by Agustin; 32 (2) Tito failed to establish that Agustin's case warrants an exception to the rule on personal filing; 33 and (3) liberal construction of the rules cannot be justified in this case. 34
To date, the Court has yet to receive a Comment from Agustin.
Issue
This Court is asked to resolve whether the COMELEC committed grave abuse of discretion amounting to lack, or excess of, jurisdiction when it denied due course to the CoC filed by Tito as substitute official candidate of Partido Reporma for the position of Vice Governor of Davao de Oro.
Ruling of the Court
I
We first settle the technical issues attending this petition. It appears that the petition is dismissible on two grounds: mootness and Tito's failure to attach with the petition a copy of the judgment/order being assailed. For reasons to be explained hereunder, we find these two issues to be interrelated and shall thus proceed to discuss them jointly.
It is not disputed that EM-22-003 was dismissed by the COMELEC En Banc by way of its Order dated 07 March 2022. It is likewise not disputed that the petition, having been filed as early as January 2022, did not attach a copy of the COMELEC Order which it ultimately seeks to challenge.
Indeed, Section 3, Rule 46 in relation to Rule 65 of the Rules of Court requires that the petition 'be accompanied by a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject thereof' such that a failure to so attach 'shall be sufficient ground for the dismissal of the petition.'
We find, however, that the peculiar circumstances of this case do not warrant a strict application of the foregoing rule. cDHAES
First, under Section 40 35 of COMELEC Resolution No. 10717, 36 it provides that an official candidate of a duly registered political party or coalition who dies, withdraws, or is otherwise disqualified may be substituted by another candidate belonging to, and nominated by, the same political party or coalition. The same section requires that the CoC of the substituting candidate must be filed on or before 15 November 2021 'so that the name of the substitute will be reflected on the official ballots.'
Here, Tito filed his CoC in substitution for Agustin on 15 November 2021. Given that it was filed within the deadline set by the COMELEC, it can be reasonably presumed that there was sufficient time to resolve the matter of Tito's substitution prior to the printing of the official ballots.
Second, Tito claims that as early as 02 December 2021, the COMELEC had already resolved the matter of Tito's substitution when it published a list of official candidates for the position of Vice Governor of Davao de Oro for purposes of the May 2022 NLEs without Tito's name being included. This was not denied by the COMELEC in its letter dated 07 December 2021, 37 sent through its Law Department, where Tito was also informed that his CoC as substitute candidate for Agustin was not given due course.
Third, to contest the foregoing holding of the COMELEC Law Department, Tito filed a number of motions seeking to reverse the same. 38 These, however, were not immediately acted upon by the COMELEC.
Fourth, Tito claims that the COMELEC, on 28 December 2021, again posted a list of candidates for the May 2022 elections on its website. His name, however, was still not included among the candidates for the position of Vice Governor for Davao de Oro. Upon advice, Tito filed a formal petition which was later docketed as EM-22-003, the subject of this case.
Fifth, after hearing of the alleged dismissal of EM-22-003, Tito wrote the COMELEC several times 39 to request for a certification of the dismissal of his petition, presumably for purposes of elevating the same before the proper authorities. However, it appears from the record that it was only after this Court issued the TRO and directed petitioners to submit a copy of the assailed Resolution that the COMELEC deigned to respond 40 to Tito's requests. It also does not escape this Court's attention that the COMELEC responded by making general references to some provisions in its Rules instead of directly informing Tito that his case was, at the time, still pending resolution by the COMELEC En Banc.
Sixth, it was only on 07 March 2022, or barely two (2) months from the May 2022 NLEs, that the COMELEC En Banc finally issued its Order dismissing Tito's petition.
The Court further notes the COMELEC's manifestation, contained in its Comment dated 03 February 2022, regarding its inability to comply with the TRO given that that the printing of the ballots has already commenced. 41 Yet, in its response 42 dated 09 February 2022 to a query from Tito's counsel, the COMELEC claims that it cannot give a categorical answer (to the question of whether the printing of the official ballots for the Province of Davao de Oro has already commenced) on account of a Non-Disclosure Agreement it signed with the National Printing Office.
As a general rule, this Court will not decide moot questions, or abstract propositions, or declare principles or rules of law which cannot affect the result as to the thing in issue in the case before it. 43 The doctrine on mootness, however, is not without exceptions. Jurisprudence shows that courts may still decide a case otherwise moot and academic if it finds that: (1) there was a grave violation of the Constitution; (2) the case involved a situation of exceptional character and was of paramount public interest; (3) the issues raised required the formulation of controlling principles to guide the Bench, the Bar and the public; and (4) the case was capable of repetition yet evading review. 44 ASEcHI
Thus, and while the conclusion of the subject elections and the subsequent proclamation and assumption to office of the new officials of the Provincial Government of Davao de Oro have arguably rendered petitioner's prayers dismissible on the ground of mootness, We find that the case falls under the fourth exception to the mootness rule.
The circumstances previously enumerated, taken all together, support a view that the COMELEC has been, at best, less than forthright with respect to its handling of the matter of Tito's substitution. At worst, it would appear that the COMELEC would underhandedly have this Court dismiss Tito's case on a technicality which the COMELEC itself caused. This simply cannot be countenanced. Furthermore, and given that the period of time between the filing of CoCs and the actual elections is too short to be fully litigated prior to a case, such as this one, becoming moot, We thus find it proper to exercise our power of judicial review and settle this case on the merits.
In other words, while indeed petitioner's prayer to be included in the official ballot as official candidate of Partido Reporma for the position of Vice Governor in the province of Davao de Oro has undoubtedly been rendered moot and academic, the issue of whether the COMELEC committed grave abuse of discretion remains unanswered. 45
II
Grave abuse of discretion has a precise meaning in remedial law. It is not mere abuse of discretion but must be grave 'as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.' 46 There must be a clear abuse of the authority vested in a tribunal. This abuse must be so serious and so grave that it warrants the interference of the Court to nullify or modify the challenged action and to undo the damage done. 47
We find, for reasons to be explained hereunder, that the COMELEC committed grave abuse of discretion amounting to lack, or excess of, jurisdiction when it denied due course to the CoC filed by Tito as substitute official candidate of Partido Reporma for the position of Vice Governor of Davao de Oro.
A
Section 73 of Batas Pambansa Blg. 881, or the Omnibus Election Code (OEC), states that a person who has filed a CoC may withdraw the same by submitting to the COMELEC a written declaration under oath. Section 77 of the OEC provides that in such case, the nominating political party may field a candidate to replace the one who died, withdrew or was disqualified.
When Tito filed his CoC as Partido Reporma's substitute candidate for the position of Vice Governor of Davao de Oro, he submitted the following documents: (a) a Statement of Withdrawal executed by Agustin formally withdrawing his candidacy and naming Tito as his substitute; 48 (b) an SPA signed by Agustin authorizing Tito to submit his Statement of Withdrawal before the appropriate COMELEC office; 49 and (c) a CONA signed by Senator Lacson, as Partido Reporma Chairman, in Tito's favor. 50
In denying due course to Tito's CoC, the COMELEC Law Department declared:
While it is true that there was a Special Power of Attorney issued by Mr. Agustin in favor of Mr. Tito authorizing him to submit his Sworn Statement of Withdrawal, it is important to note that while [COMELEC] Resolution No. 10717 requires the filing of Withdrawal of COCs to be PERSONALLY FILED by the withdrawing aspirant, filing thereof through an authorized representative is allowed in the following instances x x:
1. The withdrawing aspirant is in an area under a granular lockdown or identified as a 'critical zone' by the concerned Local Government Unit (LGU); ITAaHc
2. The withdrawing aspirant was tested positive for COVID-19; and
3. The withdrawing aspirant was identified as a close contact with any person who was tested positive for COVID-19 and on quarantine or isolation.
In addition to the requirements set forth above, particularly, the Sworn Authority to file Sworn Statement of Withdrawal, Proof of Identity and the conduct of online verification by the Receiving Officer, the submission of either the following is required:
1. Certification issued by the Barangay Chairman or any other authorized office in the LGU, stating that the withdrawing aspirant is in an area under a granular lockdown or identified as 'critical zone' by the concerned LGU or was identified as a close contact with a person who was tested positive for COVID-19 and on quarantine or isolation; OR
2. Certification issued by a Physician stating that the withdrawing aspirant was tested positive for COVID-19.
In areas with no internet connectivity, in addition to the above-mentioned Certifications, the Receiving Officer is required to submit to the Commission the following:
1. Sworn Authority to File Sworn Statement of Withdrawal;
2. Proof of Identity of the duly authorized representative;
3. Video recorded in a compact disc (CD)/USB showing the video of the aspirant executing the Statement of Withdrawal of [CoC], showing clearly the act of signing of the said statement of withdrawal;
4. Picture of the withdrawing aspirant holding the duly signed Statement of Withdrawal of [CoC] shall likewise be saved in the same CD or USB;
5. A duly notarized Statement of Withdrawal of [CoC]. 51
In its Order dated 07 March 2022, the COMELEC En Banc affirmed its Law Department's findings and rejected Tito's argument of substantial compliance with the requirements for the filing of a Statement of Withdrawal.
Notably, the requirements cited by the COMELEC Law Department as basis for the denial of Tito's petition do not appear in COMELEC Resolution No. 10717. Said documents instead appear to only be required pursuant to 'a Memorandum of the Office of the Executive Director No. 21-2972 dated 02 October 2021 as supplemented by Memorandum of the Office of the Executive Director No. 21-3335-A dated 20 October 2021.' 52
Curiously, the COMELEC, in its Comment, did not traverse the issue of applicability of the requirements as above provided. The COMELEC En Banc's Order dated 07 March 2022 similarly did not make any references to said Memoranda; it only cites Section 39 of COMELEC Resolution No. 10717.
Section 39 of COMELEC Resolution No. 10717 is hereinafter reproduced in full:
SECTION 39. Withdrawal of Certificate of Candidacy. — Any aspirant may personally file, at any time before Election Day and subject to Section 40 hereof, a sworn Statement of Withdrawal, in five (5) original copies, with the Office where the COC is filed.
No Statement of Withdrawal filed by a person other than the aspirant or if filed by mail, electronic mail, or facsimile shall be accepted.
The Regional Election Director, Provincial Election Supervisor, or the Election Officer concerned, upon the receipt of the sworn Statement of Withdrawal, shall notify the Law Department through electronic mail at [email protected] in PDF format of the said withdrawal, stating the following: CHTAIc
a. Name of the withdrawing aspirant;
b. Position aspired for;
c. Nominating PP or Coalition of PP, if any; and
d. Name of the substitute, if any.
On the same day, the Receiving Officer shall immediately forward to the Law Department, two (2) original copies of the sworn Statement of Withdrawal. The Law Department shall, in turn, forward the other copy to the ERSD.
The Receiving Officer shall retain the three (3) remaining copies of the sworn Statement of Withdrawal for file.
The filing of a sworn Statement of Withdrawal of a COC shall not affect whatever civil, criminal or administrative liability an aspirant may have incurred.
The Law Department is authorized to act on all sworn Statements of Withdrawal and substitution of aspirants for local position. All actions of the Law Department shall remain valid and effective unless otherwise reversed or set aside by the Commission.
All sworn Statements of Withdrawal and substitution of aspirants for national positions shall be submitted to the Commission En Banc for resolution.
A sample form of the Statement of Withdrawal is hereto attached as Annex 'N'.
As earlier adverted to, there is clearly nothing in the above-cited Section which provides the requirements being asked of Tito. On the contrary, Section 39 of COMELEC Resolution No. 10717 only requires the submission of a Sworn Statement of Withdrawal signed by the withdrawing candidate. This was submitted by Tito when he filed his CoC as Partido Reporma substitute vice-gubernatorial candidate.
More significantly, no copy of the afore-cited Memoranda can be found through a cursory internet search. 53 There is also nothing in the records to show that the said Memoranda were ever published (whether online or in print) as to sufficiently inform those concerned of the existence of said requirements. In Arroyo v. Department of Justice, 54 We held that the publication requirement applies to both statutes and administrative regulations and issuances:
Publication is a necessary component of procedural due process to give as wide publicity as possible so that all persons having an interest in the proceedings may be notified thereof.
The requirement of publication is intended to satisfy the basic requirements of due process. It is imperative for it will be the height of injustice to punish or otherwise burden a citizen for the transgressions of a law or rule of which he had no notice whatsoever. 55
Viewed in this light, the COMELEC's action is tainted with grave abuse of discretion, as it not only appeared to have expanded the requirements of the law with respect to withdrawals of CoCs, it also applied the same sans proof that said requirements have been duly published for due process purposes.
B
Personal filing by the aspirant is mandated under Section 39 of COMELEC Resolution No. 10717 for purposes of withdrawing a candidacy. We nevertheless find, based on the documents submitted by Tito in support of the substitution sought, that the evil sought to be prevented by the requirement of personal filing — presumably, the filing of spurious withdrawals — has been sufficiently avoided. In fact, even granting in gratia argumenti the applicability of the requirements under the Memoranda cited by the COMELEC, We find that Tito was able to show substantial compliance with the same. EATCcI
Aside from Agustin's notarized Statement of Withdrawal 56 the SPA he issued authorizing Tito to submit the same before the appropriate COMELEC office, 57 and the CONA 58 signed by Senator Lacson, as Partido Reporma Chairman, naming Tito as the party's official candidate, the records also show: (a) a Certification 59 dated 15 November 2021 issued by Partido Reporma Secretary General Edwin Jubahib (Jubahib) certifying that Agustin informed them of his inability to personally file his Statement of Withdrawal as he was identified as a close contact of a person who had tested positive for COVID-19; (b) a Certification 60 dated 12 January 2022 issued by Rodel G. Balili, Vice Chairperson of the COVID-19 Task Force in the Municipality of Nabunturan, where Agustin resides, 61 to the effect that Agustin was identified to be a close contact of a person who had tested positive for COVID-19; and (c) the Affidavit 62 dated 15 November 2021 executed by Jubahib attesting to the fact that he personally witnessed Agustin sign the Statement of Withdrawal.
C
Justice Arturo Brion, in his Opinion in Talaga v. Commission on Elections, 63 explained the concept of substitution in the context of elections: 'Substitution refers to an exceptional situation in an election scenario where the law leans backwards to allow a registered party to put in place a replacement candidate when the death, withdrawal or disqualification of its original candidate occurs.' 64
Section 77 of the OEC governs cases of substitution, thus:
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.
For purposes of the upcoming May 2022 NLE, Section 40 of COMELEC Resolution No. 10717 further provides that:
SECTION 40. Substitution of Aspirants/Official Candidates in Case of Death, Disqualification or Withdrawal of Another. — An aspirant/official candidate of a duly registered PP or Coalition who dies, withdraws or is disqualified for any cause after the last day for the filing of COCs may be substituted by an aspirant/official candidate belonging to, and nominated by, the same PP or Coalition.
No substitute shall be allowed for any independent candidate.
The substitute of an aspirant who died, withdrew his candidacy, or was disqualified may file a COC for the Office affected on or before November 15, 2021 (Monday) so that the name of the substitute will be reflected on the official ballots.
No substitution due to withdrawal shall be allowed after November 15, 2021.
The substitute for an aspirant/candidate who died or was disqualified by final judgment, may file a COC up to mid-day of Election Day; Provided that, the substitute and the substituted aspirant/candidate have the same surnames.
If the death or disqualification should occur between the day before the election and mid-day of Election Day, the substitute may file a COC with any of the Electoral Board, Election Officer, Provincial Election Supervisor or Regional Election Director, as the case may be, in the political subdivision where the person is a candidate, or in the case of a candidate for President, Vice President and Senator, with the Law Department; Provided that, the substitute and substituted candidate have the same surnames. 65
The OEC does not expressly speak of repudiation. Section 31 (c) of COMELEC Resolution No. 10717, on the other hand, declares one who has repudiated a CONA from a duly registered political party or coalition to be an independent candidate who, under Section 40, cannot be validly substituted. In addition, while existing regulations provide for a deadline for the withdrawal (and substitution of withdrawing candidates), the same is not true for cases of repudiation.
In this case, the question as to whether Agustin in fact withdrew his candidacy or repudiated his nomination as official Partido Reporma candidate for the position of Vice Governor, Davao de Oro, persists. Ultimately, however, if the COMELEC's denial of Tito's CoC in this case is sustained, the fact would remain that regardless of whether Agustin withdrew his candidacy or repudiated the CONA issued to him, Partido Reporma will be left without a candidate from its own ranks and of its own choosing, for Vice Governor of the Province of Davao de Oro. To this Court's mind, this is deplorable as it not only operates to defeat Partido Reporma's right (under Section 77 of the OEC) to field a substitute candidate belonging to its party, it also unduly limits the exercise of the sovereign will of the electorate to be expressed through the ballot. DHITCc
On this score, We find apropos Justice Brion's reminder that 'a failsafe method in an election situation is to give premium consideration not to the candidates or their parties, but to the electorate's process of choice and the integrity of the elections.' 66 In view of the attendant legal or factual equipoise situation, this Court leans towards the integrity of the electoral process and holds that Tito's CoC, as substitute Partido Reporma candidate for the position of Vice Governor of Davao de Oro, should have been given due course.
III
This Court has noted, earlier in this Resolution, the COMELEC's less than commendable handling of the matter subject of this case. Its decision to not comply with the TRO issued by this Court, as contained in the COMELEC's Resolution dated 26 January 2022, 67 is likewise keenly noted.
These, in turn, bring to mind the case of Philippine Guardians Brotherhood, Inc. (PGBI) v. Commission on Elections, 68 where this Court issued a severe reprimand to the COMELEC Chair and its Members for their failure to comply with a Status Quo Order issued by the Court.
In said case, the Court issued a Status Quo Order dated 02 February 2010 (and which was served on the same date) directing the COMELEC to include PGBI in the list of candidates under the party-list system in the 10 May 2010 elections pending the final determination of PGBI's qualification to be voted upon as a party-list organization. On 03 February 2010, the COMELEC manifested that it could no longer change the ballots because of the nature of an automated election. It pleaded insurmountable and tremendous operational constraints and costs implications of the automation of the elections as reasons for its avoidance of the Court's Order. Thus, and the Court's order notwithstanding, PGBI was never included in the ballot and, as a consequence, never voted upon as a party-list candidate in the 10 May 2010 elections.
After proceedings, the Court found the COMELEC's explanation unacceptable. It noted the COMELEC's own self-imposed deadline of 04 February 2010 for the correction of errors and omissions, prior to printing, of the published list of participating party-list groups and organizations in the 10 May 2010 elections:
The COMELEC deadline could only mean that the COMELEC had determined that changes in the official ballot could still be made at any time prior to the deadline. In the context of the cases then pending involving the registration of party-list organizations, the deadline was a clear signal from the COMELEC that the cases would have to be resolved before the deadline; otherwise, the COMELEC could not be held liable for their non-inclusion.
xxx xxx xxx
In an exercise as important as an election, the COMELEC cannot make a declaration and impose a deadline, and, thereafter, expect everyone to accept its excuses when it backtracks on its announced declaration. The COMELEC knew very well that there were still cases pending for judicial determination that could have been decided before the deadline was set.
xxx xxx xxx
To be excused, the COMELEC needed more than its generalized descriptions of the process of ballot printing and the alleged problems it faced. We needed reasons on how and why the deadline was set, as well as detailed and specific reasons why PGBI could no longer be listed while other errors and omissions could still be remedied.
Unfortunately for the COMELEC, we did not see that kind of justification in its Compliance before us. Like the COMELEC, we expect obedience to and respect for our Orders and Resolutions, and we cannot be sidetracked based solely on supposed operational constraints caused by the automated polls. Its treatment of our Status Quo Order simply meant that even before the COMELEC deadline, a definitive ruling that a party-list organization should be included in the list to be voted upon would have been for naught as the COMELEC would have anyway pleaded automation constraints. Even if its excuse had been meritorious, the COMELEC effectively would have been guilty of misrepresentation on an election matter and in dealing with this Court. 69 cEaSHC
This Court finds circumstances similar to the foregoing to obtain in this case. Here, the COMELEC itself set the deadline for filing of withdrawals (and substitutions) on 15 November 2021. This is presumably to give the COMELEC sufficient time to resolve any pending incidents regarding the matter of withdrawals and substitution so that 'the name of the substitute will be reflected on the official ballots.' 70 Despite Tito's compliance with said deadline, however, the COMELEC En Banc did not settle the issue of Tito's substitution until 07 March 2022, or nearly two (2) months after it had started the printing of official ballots on 23 January 2022. 71
In the meantime, and similar to what transpired in Philippine Guardians Brotherhood, Inc. (PGBI) v. Commission on Elections, 72 the COMELEC, in its Comment to the petition, once again invoked the specter of possible derailment of the conduct of elections to justify non-compliance with the TRO issued by the Court:
51. It is manifested that changes in the official ballot, introduced after the serialization of the machine-readable ballots and the configuration of the SD Cards, may only be implemented by redoing the whole process, starting from the generation of the ballots. Particularly, any modification or correction on the ballot would require at least eight (8) days to complete the process.
52. Given that the printing of the ballots has already commenced, it is submitted that any adjustment, postponement or suspension on the same would be significantly detrimental to the timeliness of [the COMELEC], which shall ultimately affect the conduct of credible elections. 73
As it turns out, the printing the ballots was completed on 02 April 2022, more than three (3) weeks from its target end date of 25 April 2022. 74 The COMELEC, as conscious as it was of the importance of observing timelines, failed to exert the same level of vigilance in resolving Tito's petition prior to the printing. Its ambiguous (and as it now turns out, disingenuous) responses to petitioner's repeated requests and queries regarding the status of his case also do not serve to inspire confidence that earnest efforts were indeed taken to resolve the case expeditiously. As a result, the COMELEC, wittingly or not, effectively disenfranchised voters who would have wanted to vote for a bona fide75 Partido Reporma candidate for Vice Governor of Davao de Oro. As held by the Court in Philippine Guardians Brotherhood, Inc. (PGBI) v. Commission on Elections, 76 'this is a consideration no less weighty than the automation of the election and cannot be simply disregarded on mere generalized allegations of automation difficulties.'
While the Court, like the COMELEC, is ever mindful of the necessity of observing the calendar of election activities, the latter is reminded that timeliness in the context of the conduct of credible elections covers all aspects of its election-related activities. This includes the COMELEC's timely resolution of incidents which require its final action so as not to defeat any substantive rights. Any undue delay in the resolution of the cases pending before it not only prejudices the litigants, but ultimately, the electorate as well. 77
WHEREFORE, all the foregoing premises considered, the petition is PARTLY GRANTED.
The COMELEC is found to have committed grave abuse of discretion amounting to lack or excess of jurisdiction when it denied due course to the COC filed by petitioner Francisco Juegos Tito as substitute official candidate of Partido Reporma for the position of Vice Governor of Davao de Oro. The prayer to be included in the official ballot as official candidate of Partido Reporma for the position of Vice Governor in the province of Davao de Oro is, however, DISMISSED insofar as it has already become MOOT and ACADEMIC.
The COMELEC is also STERNLY REMINDED that the timely resolution of cases also forms part and parcel of its sacred duty of safeguarding the people's right of suffrage. Any undue delay in the resolution of the cases pending before it not only prejudices the litigants, but ultimately, the electorate it is expected to protect as well." Inting, J., no part. Lopez, M., J., on leave. Kho, Jr., J., no part. Singh, J., on leave. (33) CTIEac
By authority of the Court:
(SGD.) MARIFE M. LOMIBAO-CUEVASClerk of Court
Separate Opinions
CAGUIOA, J., dissenting:
The ponencia partially grants the Petition for Certiorari1 (Petition) filed by petitioners Francisco Juegos Tito (Tito) and Partido Para sa Demokratikong Reporma (Partido Reporma) and finds respondent Commission on Elections (COMELEC) to have committed grave abuse of discretion amounting to lack or excess of jurisdiction when it denied due course to the Certificate of Candidacy (CoC) filed by Tito as substitute to Alexander Petalcorin Agustin (Agustin), who was an official candidate of Partido Reporma for the position of Vice Governor of Davao de Oro for the 2022 National and Local Elections (2022 NLE). 2
To recall, Tito and Agustin filed their CoCs under Partido Reporma for the positions of Governor and Vice Governor, respectively. Later, Tito filed with the Office of the Provincial Election Supervisor of Davao his Affidavit of Withdrawal with Substitution 3 for the position of Governor and expressed his desire to be substituted by another member of Partido Reporma. Subsequently, Tito filed a CoC for the position of Vice Governor in place of Agustin, along with a Statement of Withdrawal 4 purportedly executed by Agustin and naming Tito as his substitute and a Special Power of Attorney 5 (SPA) authorizing Tito to file his withdrawal with the COMELEC. According to Tito, Agustin was not able to personally file his withdrawal as the latter had to isolate after having been identified as a close contact with a person who had tested positive for COVID-19. 6
A few days after he filed his CoC and Agustin's alleged withdrawal, Tito discovered that his name was not in the list of candidates for Governor and that Agustin's name was retained in the list of candidates for Vice Governor in the COMELEC website. Tito thereafter sent a letter to the COMELEC to inquire into the matter. 7
Meanwhile, in a Letter 8 dated November 8, 2021, Agustin informed the COMELEC that he was repudiating his Certificate of Nomination and Acceptance (CONA) as the official candidate for Vice Governor of Partido Reporma. He then requested the COMELEC or its Law Department to declare him as an independent candidate pursuant to Section 31 (c) 9 of COMELEC Resolution No. 10717. 10
In a Letter 11 dated December 7, 2021, the COMELEC, through its Law Department, explained that Tito's withdrawal of his CoC for the position of Governor was given due course but Agustin's withdrawal, and necessarily Tito's filing of CoC as his substitute for the position of Vice Governor, was denied. 12
According to the COMELEC Law Department, Agustin's withdrawal was not given due course because it was not personally filed by Agustin as required by Section 39 13 of COMELEC Resolution No. 10717. Further, the COMELEC Law Department said that while filing through a representative may be allowed in some cases, 14 the same must comply with the requirements provided under the two (2) Memoranda 15 issued by the Office of the Executive Director (the COMELEC Memoranda). Unfortunately, Tito, who was allegedly the authorized representative of Agustin, failed to submit the following requirements: (1) a Certification issued by the Barangay Chairperson or any other authorized office in the Local Government Unit (LGU) stating that the withdrawing candidate was identified as a close contact with any person who was tested positive for COVID-19 and on quarantine or isolation; (2) Tito's proof of identity; and (3) a recording or CD/USB showing clearly the act of the aspirant signing the Statement of Withdrawal. 16 SaCIDT
Subsequently, in a Letter 17 dated December 13, 2021, Partido Reporma informed the COMELEC that it was not notified of Agustin's CONA repudiation. According to Partido Reporma, its right to due process was violated and it thereby requested that the repudiation be "treated as a mere scrap of paper." 18 Partido Reporma also said that it will only accept Agustin's resignation "so long as COMELEC accepts [Tito] as the substitute candidate of Partido Reporma for Vice Governor in the province of Davao de Oro. Otherwise, Partido Reporma will be left with no candidate for said position." 19
On December 28, 2021, the COMELEC posted another tentative list of candidates for the 2022 NLE and Tito's name was still not included in the said list. 20 Thereafter, Tito filed a motion for reconsideration but was advised by the COMELEC Clerk of Court to instead file a petition that can be docketed as an election matter. 21 Hence, Tito filed a petition which was docketed as EM-22-003. 22 Later on, the COMELEC En Banc denied the said petition in a Minute Resolution dated January 12, 2022 (COMELEC En Banc Minute Resolution) based on the following grounds: (1) the signatures of Agustin appearing on the documents are different; and (2) lack of municipal health certification on Agustin's exposure to a COVID-19 positive patient, among others. 23
Tito requested for a certification as to the fact of denial of his petition, but considering the proximity of the printing of ballots and without any response from the COMELEC, Tito filed this Petition with an application for a writ of preliminary mandatory injunction to compel the COMELEC to include his name in the ballots as the official candidate of Partido Reporma for the position of Vice Governor. 24
On January 26, 2022, the Court issued a temporary restraining order 25 (TRO) enjoining the COMELEC from enforcing the COMELEC En Banc Minute Resolution and requiring the COMELEC to comment on the Petition. Tito was also directed to submit a legible duplicate original or certified true copy of the COMELEC En Banc Minute Resolution and to implead Agustin and Partido Reporma as parties, which the Court also required to comment. Eventually, the Court received the Compliance 26 and Amended Petition 27 filed by Tito with Partido Reporma as co-petitioner. 28
The Office of the Solicitor General (OSG) filed a Comment 29 on behalf of the COMELEC. In its Comment, the OSG alleged that the Petition should be dismissed outright as it was filed without an attached legible duplicate original or certified true copy of the COMELEC En Banc Minute Resolution. It also asserted that the Petition raises mere errors of judgment, which are clearly beyond the ambit of a petition filed under Rule 65 of the Rules of Court. 30 With respect to the TRO, the OSG reasoned that the COMELEC could not comply with the Court's directive because the printing of the official ballots had already commenced and that "any adjustment, postponement or suspension on the same would be significantly detrimental to the timeliness of [the COMELEC], which shall ultimately affect the conduct of credible elections." 31
Petitioners subsequently filed a Motion for Leave of Court to File Reply and to Admit Reply 32 where they asserted, among other things, that the failure to attach a copy of the assailed COMELEC En Banc Minute Resolution was due to the fault of the COMELEC and the COMELEC's findings of forgery on the documents signed by Agustin is not merely an error of judgment, but grave abuse of discretion. 33
Later, petitioners furnished the Court with a copy of an Order 34 dated March 7, 2022 issued by the COMELEC En Banc dismissing EM-22-003. 35 In the said Order, the COMELEC En Banc affirmed the findings of its Law Department 36 and dismissed Tito's petition based on the following: (1) records showed that the Statement of Withdrawal was not filed personally by Agustin as required by Section 39 of COMELEC Resolution No. 10717; (2) Tito failed to establish that Agustin's case warrants an exception to the rule on personal filing; and (3) liberal construction of the rules cannot be justified in the present case. To date, the Court has yet to receive a Comment from Agustin. 37 cHECAS
In the ponencia, the Court rules on the merits despite the mootness of the Petition and petitioners' initial failure to attach the assailed COMELEC Order. 38 The ponencia then proceeds to rule that the COMELEC committed grave abuse of discretion when it denied due course to the CoC filed by Tito as substitute to Agustin. 39 According to the ponencia, although personal filing of the withdrawal by the candidate is mandated under Section 39 of COMELEC Resolution No. 10717, Tito substantially complied with the requirements imposed by the COMELEC when the filing of a candidate's withdrawal was done through an authorized representative. 40 The ponencia also mentions that regardless of whether Agustin withdrew his candidacy or repudiated the CONA issued to him, Partido Reporma will be left without a candidate from its own ranks and of its own choosing. 41 This defeats Partido Reporma's right to field a substitute candidate and "unduly limits the exercise of the sovereign will of the electorate to be expressed through the ballot." 42
I respectfully register my disagreement with the foregoing.
First, a cardinal rule in statutory construction is that when the law is clear and free from any doubt or ambiguity, there is no room for construction or interpretation. 43 There is only room for application. 44 Under Section 39 of COMELEC Resolution No. 10717, the withdrawal of a CoC must be done personally. Indeed, and as the ponencia itself finds, COMELEC Resolution No. 10717 makes no mention of an exception to the rule on personal filing.
In the present case, Tito filed the withdrawal of Agustin's CoC. Hence, Tito has the burden of proving that such non-personal filing is exempted under any law or rule. Tito's failure to invoke any exemption principally justifies the COMELEC's denial of Agustin's withdrawal and consequently, Tito's CoC as Vice Governor.
Even assuming that non-personal filing is allowed based on the COMELEC Memoranda, it cannot be said that Tito complied with the same and that the documents he submitted to the COMELEC were "in accordance with the spirit behind the requirements laid down by COMELEC Resolution No. 10717." 45
Based on the records, Tito failed to submit: (1) a Certification issued by the Barangay Chairperson or any other authorized office in the LGU stating that the withdrawing candidate was identified as a close contact with any person who was tested positive for COVID-19 and on quarantine or isolation; (2) his proof of identity; and (3) a recording showing clearly the act of the aspirant signing the Statement of Withdrawal, all of which are requirements for non-personal filing of a candidate's withdrawal.
Tito further posits that he should not be faulted for the absence of the conduct of an online video verification as required by the COMELEC Memoranda since it is upon the COMELEC Receiving Officer, and not Tito, who is tasked to do such requirement. 46
Tito is wrong.
As correctly pointed out by the COMELEC En Banc, the failure to conduct an online video verification was due to Tito's fault and the reception of documents by the Receiving Officer cannot be binding when the submission goes against the law. The COMELEC En Banc held:
Likewise, [Tito's] argument that he should not be faulted for the absence of the conduct of online verification since it is a directive to the Receiving Officer and not to [Tito] is also without basis. The Certification47issued by PES Caballero clearly stated that failure to conduct online video verification was due to the fact that the withdrawing party cannot be contacted. The same Certification also stated that [when Tito], himself, tried to contact Mr. Agustin in her presence, he could not be reached. [Tito] did not controvert or deny the contents of the Certification. Indeed, the directive is with the Receiving Officer, however the attempts made by PES Caballero to contact Mr. Agustin were sufficient when even [Tito] himself cannot contact the candidate he is claiming to substitute. In addition, alternatively, [Tito] could have presented a video showing clearly the act of signing of the Statement of Withdrawal and a photo of the withdrawing candidate holding the duly signed Statement of Withdrawal stored in a CD or USB but failed to do so. AHDacC
Similarly, [Tito's] claim that the issue of the validity of the Statement of Withdrawal was already settled when the Receiving Officer accepted the same and stamped it as "received" is without basis. [Tito's] argument that it cannot be ruled otherwise since the judgment of the Receiving Officer cannot be substituted and that the power to evaluate a Statement of Withdrawal is vested with the Receiving Officer is absurd. The reception of the documents of the Receiving Officer cannot be binding when such submission goes patently against the law. 48 (Emphasis supplied; italics in the original)
Based on the foregoing, whether the filing of the withdrawal is personal or through an authorized representative, Tito ultimately did not comply with the pertinent requirements provided under the law.
Second, based on the COMELEC's factual findings, the documents pertaining to Agustin's withdrawal bear different signatures. 49 The ponencia does not seem to reverse these factual findings. Moreover and indeed, a perusal of the annexes attached to the Petition shows that Agustin's signature appearing in the Statement of Withdrawal and in the SPA submitted by Tito is visibly different from Agustin's signature in his Letter 50 dated November 8, 2021 submitted to the COMELEC.
In the Petition, Tito asserts that the documents signed by Agustin were notarized and thus, under the law, enjoy a presumption of regularity. 51 He also stated that the authenticity of Agustin's signatures is supported by the Affidavit 52 dated November 15, 2021 by Mr. Edwin Jubahib, Partido Reporma's Secretary General. 53 Further, Tito claims that the COMELEC is bereft of any power to judge whether the signature on the documents signed by Agustin was really that of the latter's since the COMELEC is not an expert on the matter. 54
Tito misses the point.
In several instances, the Court has ruled that while it is true that a notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and has in its favor the presumption of regularity, this presumption is not absolute. 55
In City of Tanauan v. Millonte, 56 the Court held that the due execution of a document cannot be sustained simply because it was notarized. In that case, the petitioner, among other things, alleged that the validity of the assailed Deed of Absolute Sale should be upheld simply because the document was notarized. In denying the petition, the Court held that the presumption of regularity in notarized documents is not conclusive as it can be refuted by clear and convincing evidence. 57 Further, the Court observed that since the petitioner did not present the testimony of the notary public who notarized the assailed Deed of Absolute Sale, there was no convincing basis to conclude that the signatories on the document were the real owners of the property. 58 According to the Court, the petitioner did not even attempt to submit other documents which could help in ascertaining that the signatures in the assailed Deed of Absolute Sale were genuine. 59
Similar to the present case, Tito cannot insist on asserting the validity of the documents he submitted on behalf of Agustin simply because they were all notarized. To be sure, there was a factual finding by the COMELEC En Banc that the signatures of Agustin appearing on the documents are different. 60 Records show that Tito was not able to controvert such factual finding. He was unable to present the notary public who allegedly notarized the subject documents nor submit other documents bearing Agustin's signature for comparison.
Notably, Tito's failure to make an online video verification before the COMELEC Receiving Officer, as required by the COMELEC Memoranda, further weakens his claim that the Statement of Withdrawal and the SPA he submitted on behalf of Agustin were duly executed. If only to ascertain that the signatures found therein were genuine, Tito could have complied with this simple requirement. IDSEAH
Additionally, Tito cannot claim that the COMELEC is bereft of any power to ascertain the genuineness of Agustin's signatures on the documents 61 if a plain visual comparison of the signatures found in the documents easily reveals prominent dissimilarities. 62
Third, records show that Agustin, in fact, intended to stay in the Vice Gubernatorial race. To recall, Agustin sent a letter dated November 8, 2021 to the COMELEC informing the latter that he is repudiating his nomination by Partido Reporma with a prayer that he be considered as an independent candidate pursuant to Section 31 (c) of COMELEC Resolution No. 10717, which states that candidates who repudiate their nominations by parties are considered independent candidates.
Although COMELEC Resolution No. 10717 does not provide for a specific procedure on how a nominee from a political party or coalition can repudiate his or her CONA, Section 39 (Withdrawal of Certificate of Candidacy) of the same COMELEC Resolution provides that any aspirant may personally file a sworn Statement of Withdrawal any time before election day, subject to Section 40 63 of the same COMELEC Resolution. Section 39 further states that "[n]o Statement of Withdrawal filed by a person other than the aspirant or if filed by mail, electronic mail, or facsimile shall be accepted." 64
As earlier discussed, Agustin did not personally file the purported Statement of Withdrawal. Thus, it cannot be said that he withdrew his CoC. Also, in the Letter dated November 8, 2021, Agustin was categorical in his repudiation of his CONA and his request to be declared as an independent candidate. 65
As Agustin repudiated his nomination, he is considered an independent candidate and consequently, cannot be substituted pursuant to Section 40 of COMELEC Resolution No. 10717, which states that no substitutes shall be allowed for any independent candidates. Moreover, under Section 77 66 of the Omnibus Election Code 67 (OEC), only official candidates of political parties can be substituted.
Finally, although the ponencia does not expressly mention Agustin, the necessary effect of granting Agustin's withdrawal and affirming Tito's CoC for Vice Governor is the retention of both Agustin and Tito as candidates for Vice Governor. This is not sanctioned under any law and creates a legal absurdity.
As mentioned, Section 77 of the OEC allows substitution in case of a withdrawal by an official candidate of a registered political party. The substitute and the substituted, which in this case are allegedly Tito and Agustin respectively, cannot remain as candidates simultaneously. Notably, the ponencia, which does not order the removal of Agustin from the ballot, retains him as a candidate for Vice Governor and at the same time allows his supposed substitute, Tito, to run for the same position.
Considering that, based on the law and factual circumstances of the present case, (i) Agustin did not personally file his Statement of Withdrawal, (ii) Tito failed to invoke any law or rule that warrants Agustin's case to be considered as an exception to the rule on personal filing, (iii) Tito was unable to controvert the findings of the COMELEC that the purported signatures on the documents pertaining to Agustin's withdrawal were different from his other signatures, and (iv) Agustin clearly intended to remain as a candidate for Vice Governor, having repudiated his CONA with a request that he be declared as an independent candidate, then undeniably, petitioners were not able to establish any justifiable reason to warrant the reversal of the COMELEC En Banc's Order dated March 7, 2022 dismissing Tito's petition in EM-22-003.
All told, I vote to DENY the instant Petition for Certiorari as the COMELEC did not commit any grave abuse of discretion amounting to lack or excess of jurisdiction when it denied due course to the CoC filed by Tito as substitute for Agustin. aCIHcD
Footnotes
1.Rollo, pp. 74-A-74-C. In an Order dated 26 January 2022, the Court directed Tito to implead Alexander Petalcorin Agustin and Partido Reporma as parties.
2.Id. at 3-73.
3. It appears that Tito was substituted by one Dorothy Gonzaga as Partido Reporma's official candidate for Governor of Davao de Oro.
4. Annex C of the petition; Rollo, p. 43.
5.Id. at 41.
6.Id. at 42.
7.Id. at 44.
8.Id. at 45-46.
9.Id. at 48-49.
10.Id. at 52-54.
11.Id. at 60-63.
12.Id. at 55.
13.Id. at 57.
14.Id. at 58.
15.Id. at 67.
16.Id. at 6.
17.Id. at 68-71.
18.Id. at 3-73.
19.Id. at 17-18.
20.Id. at 74-A to 74-C.
21.Id. at 77-89.
22.Id. at 90-95.
23.Id. at 96-153.
24.Id. at 149-150.
25.Id. at 154.
26.Id. at 155-173.
27.Id. at 168-169. Emphasis supplied.
28.Id. at 175-193.
29.Id. at 182-184.
30.Id. at 197.
31.Id. at 200-205. It is noted, however, that the accompanying Notice, signed by Atty. Genesis M. Gatdula, Clerk of the Commission, states the date of the Order as 07 February 2022 (Id. at 198-199).
32.Id. at 203.
33.Id. at 204-205.
34.Id. at 205.
35. This Section reads:
SECTION 40. Substitution of Aspirants/Official Candidates in Case of Death, Disqualification or Withdrawal of Another. — An aspirant/official candidate of a duly registered PP or Coalition who dies, withdraws or is disqualified for any cause after the last day for the filing of COCs may be substituted by an aspirant/official candidate belonging to, and nominated by, the same PP or Coalition.
No substitute shall be allowed for any independent candidate.
The substitute of an aspirant who died, withdrew his candidacy, or was disqualified may file a COC for the Office affected on or before November 15, 2021 (Monday) so that the name of the substitute will be reflected on the official ballots.
36. Also known as the 'RULES AND REGULATIONS GOVERNING: 1) POLITICAL CONVENTIONS; 2) SUBMISSION OF NOMINEES OF GROUPS OR ORGANIZATIONS PARTICIPATING UNDER THE PARTY-LIST SYSTEM OF REPRESENTATION; AND 3) FILING OF CERTIFICATES OF CANDIDACY AND NOMINATION OF AND ACCEPTANCE BY OFFICIAL CANDIDATES OF REGISTERED POLITICAL PARTIES OR COALITIONS OF POLITICAL PARTIES IN CONNECTION WITH THE MAY 9, 2022 NATIONAL AND LOCAL ELECTIONS.' Promulgated: 18 August 2021.
37. Also referred to in some parts as Law Department Document No. 21-6753; Rollo, pp. 52-54.
38.Id. at 60-65.
39.Id. at 68-71.
40.Id. at 139-140.
41.Id. at 168-169.
42.Id. at 187-188.
43.Marquez v. Commission on Elections, G.R. No. 244274, 03 September 2019.
44.Id.
45. See Philippine National Bank v. Court of Appeals, 353 Phil. 473, 480 (1998).
46.G.V. Florida Transport, Inc. v. Tiara Commercial Corp., 820 Phil. 235, 247 (2017).
47.Id.
48.Rollo, p. 41.
49.Id. at 42.
50.Id. at 44.
51.Id. at 53, emphasis omitted.
52.Id.
53. As of 20 April 2022.
54. 695 Phil. 302 (2012).
55.Id. at 309.
56.Rollo, p. 41.
57.Id. at 42.
58.Id. at 44.
59.Id. at 46.
60.Id. at 47.
61.Id. at 42.
62.Id. at 50-51.
63. 696 Phil. 786 (2012).
64.Id. at 918.
65. Emphases appear in the original.
66.Supra note 64, at 918.
67.Rollo, pp. 175-186.
68. 661 Phil. 427 (2011).
69.Id. at 439-440.
70. COMELEC Resolution No. 10717, Sec. 40.
71. See <https://newsinfo.inquirer.net/1543905/aes-ballot-printing-for-barmm-to-start>, last accessed 20 April 2022. See also <https://www.bworldonline.com/the-nation/2022/01/23/425225/comelec-starts-printing-ballots-for-may-elections/> (visited 20 April 2022).
72.Supra note 69.
73.Rollo, pp. 168-169.
74. Per Official Twitter Account of COMELEC, <https://twitter.com/COMELEC/status/1510096571781713925?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1510096571781713925%7Ctwgr%5E%7Ctwco%5Es1_c10&ref_url=https%3A%2F%2Fnewsinfo.inquirer.net%2F1577133%2Fcomelec-completes-printing-of-ballots-ahead-of-target-date> (visited 20 April 2022).
75. Notably, in spite of everything that has transpired and contrary to its findings as stated in its Order dated 07 March 2022, the COMELEC website still listed Agustin as the official candidate of Partido Reporma for the position of Vice Governor of Davao del Oro. See Annex R to the Petition; rollo, p. 67. See also <https://comelec.gov.ph/php-tpls-attachments/2022NLE/TentativeListsofCandidates/R11/DAVAO_DE_ORO/PROVINCIAL.pdf> (visited 20 April 2022).
76.Supra note at 69.
77. See Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, 452 Phil. 899 (2003).
CAGUIOA, J., dissenting:
1. Denominated as "Petition for Certiorari with Prayer for the Issuance of a Preliminary Mandatory Injunction," rollo; pp. 3-73, including Annexes.
2.Ponencia, pp. 20-21.
3.Rollo, p. 8.
4.Id. at 41.
5.Id. at 42.
6.Ponencia, pp. 1-2.
7.Id. at 2.
8.Rollo, p. 55.
9.SECTION 31. Independent Candidate. — An independent candidate is one who falls in any of the following circumstances:
xxx xxx xxx
(c) Who has not accepted a nomination, or has repudiated a CONA from a duly registered [Political Party] or Coalition;
xxx xxx xxx
10. RULES AND REGULATIONS GOVERNING: 1) POLITICAL CONVENTIONS; 2) SUBMISSION OF NOMINEES OF GROUPS OR ORGANIZATIONS PARTICIPATING UNDER THE PARTY-LIST SYSTEM OF REPRESENTATION; AND 3) FILING OF CERTIFICATES OF CANDIDACY AND NOMINATION OF AND ACCEPTANCE BY OFFICIAL CANDIDATES OF REGISTERED POLITICAL PARTIES OR COALITIONS OP POLITICAL PARTIES IN CONNECTION WITH THE MAY 9, 2022 NATIONAL AND LOCAL ELECTIONS, August 18, 2021.
11. Document No. 21-6753, rollo, pp. 52-54.
12.Ponencia, p. 2; id. at 52-53.
13.SECTION 39. Withdrawal of Certificate of Candidacy. — Any aspirant may personally file, at any time before Election Day and subject to Section 40 hereof, a sworn Statement of Withdrawal, in five (5) original copies, with the Office where the COC is filed.
No Statement of Withdrawal filed by a person other than the aspirant or if filed by mail, electronic mail, or facsimile shall be accepted.
The Regional Election Director, Provincial Election Supervisor, or the Election Officer concerned, upon the receipt of the sworn Statement of Withdrawal, shall notify the Law Department through electronic mail at [email protected] in PDF formal of the said withdrawal, stating the following:
a. Name of the withdrawing aspirant;
b. Position aspired for;
c. Nominating [Political Party] or Coalition of [Political Parties], if any; and
d. Name of the substitute, if any.
On the same day, the Receiving Officer shall immediately forward to the Law Department, two (2) original copies of the sworn Statement of Withdrawal. The Law Department shall, in turn, forward the other copy to the ERSD.
The Receiving Officer shall retain the three (3) remaining copies of the sworn Statement of Withdrawal for file.
The filing of a sworn Statement of Withdrawal of a COC shall not affect whatever civil, criminal or administrative liability an aspirant may have incurred.
The Law Department is authorized to act on all sworn Statements of Withdrawal and substitution of aspirants for local position. All actions of the Law Department shall remain valid and effective unless otherwise reversed or set aside by the Commission.
All sworn Statements of Withdrawal and substitution of aspirants for national positions shall be submitted to the Commission En Banc for resolution.
A sample form of the Statement of Withdrawal is hereto attached as Annex "N".
14.Rollo, p. 53. According to the Letter dated December 7, 2021 of the COMELEC Law Department, a withdrawing aspirant is allowed to file through an authorized representative in the following instances:
1. The withdrawing aspirant is in area under a granular lockdown or identified as a "critical zone" by the concerned [LGU];
2. The withdrawing aspirant was tested positive for COVID-19; and
3. The withdrawing aspirant was identified as a close contact with any person who was tested positive for COVID-19 and on quarantine or isolation.
15. Memorandum of the Office of the Executive Director No. 21-2972 dated October 2, 2021, as supplemented by the Memorandum of the Office of the Executive Director No. 21-3335-A dated October 20, 2021. See ponencia, p. 12 and rollo, p. 53.
16.Ponencia, p. 2; rollo, pp. 53-54.
17.Rollo, pp. 57-58.
18.Ponencia, p. 3; rollo, p. 57.
19.Id.; id. at 58.
20.Id.
21.Id.
22.Id.
23.Id.
24.Id. at 3-4.
25.Rollo, pp. 74-A to 74-C.
26.Id. at 90-95.
27.Id. at 96-153, including Annexes.
28.Ponencia, pp. 4-5.
29.Rollo, pp. 155-173.
30.Ponencia, p. 5.
31.Id. at 5-6. Emphasis omitted.
32.Rollo, pp. 175-194, including Annexes.
33.Ponencia, p. 6.
34.Rollo, pp. 200-205.
35.Ponencia, p. 6.
36.Id. at 12.
37.Id. at 6-7.
38.Id. at 7-10.
39.Id. at 10, 20-21.
40.Id. at 14-15.
41.Id. at 17.
42.Id.
43.Bolos v. Bolos, 648 Phil. 630, 637 (2010).
44.Id. at 637.
45.Rollo, p. 25. Emphasis and italics omitted.
46.Id. at 28-29.
47.Id. at 59.
48.Id. at 204.
49.Ponencia, p. 3.
50.Rollo, p. 55.
51.Id. at 18-19.
52.Id. at 50-51.
53.Id. at 18-19.
54.Id. at 19.
55.City of Tanauan v. Millonte, G.R. No. 219292, June 28, 2021, p. 9, citing Mendoza v. Fermin, 738 Phil. 429, 444 (2014), further citing Adelaida Meneses (deceased) v. Venturozo, 675 Phil. 641, 651-652 (2011).
56.Id.
57.Id. at 9.
58.Id.
59.Id.
60.Ponencia, p. 3.
61.Rollo, p. 19.
62. Section 1, Rule 41 of the COMELEC Rules of Procedure state that in the absence of any applicable provisions in the COMELEC Rules, the pertinent provisions of the Rules of Court shall be applicable by analogy or in suppletory character and effect. Under Section 22, Rule 132 of the Rules of Court, the court is authorized, by itself, to make a comparison of the disputed handwriting with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. See also Almeda v. Heirs of Ponciano Almeda, 818 Phil. 239, 259 (2017).
63.SECTION 40. Substitution of Aspirants/Official Candidates in Case of Death, Disqualification or Withdrawal of Another. — An aspirant/official candidate of a duly registered [Political Party] or Coalition who dies, withdraws or is disqualified for any cause after the last day for the filing of CoCs may be substituted by an aspirant/official candidate belonging to, and nominated by, the same [Political Party] or Coalition.
No substitute shall be allowed for any independent candidate.
xxx xxx xxx
64. Italics supplied.
65.Rollo, p. 205.
66. SECTION 77. Candidates in case of death, disqualification or withdraw 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. x x x
67. Batas Pambansa Blg. 881, OMNIBUS ELECTION CODE OF THE PHILIPPINES, approved on December 3, 1985.