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INSIDER’S NOTES ON ELECTION LAWS : The Furtive Fugitive

Mayor Bitong Bigote (Mayor Bigote), the heavily-mustached guy, of the municipality of Budol filed his certificate of candidacy (cOc) for Mayor hoping for a re-election.  Immediately thereafter, a disqualification (DQ) case was filed by his opponent for the same position, Mr. Pepong Malutong (Mr. Malutong).  Mr. Malutong, the hungry, skinny fellow with a face ravaged by grief, alleged that during the period for filing of cOcs, Mayor Bigote has cases of theft and several counts of fraud in a US (United States) court.  As a matter of fact, an arrest warrant has already been issued.  It could be recalled that sometime last year, Mayor Bigote took a leave of absence saying that he is going to take a vacation in Las Vegas, USA.  He stayed there for a period of four months.

Said arrest warrant is yet to be served but it could not be served due to Mayor Bigote’s alleged ‘flight’ out of the country when he hurriedly returned to the Philippines.  Mr. Malutong further alleged that Mayor Bigote’s c0c must be cancelled because the latter is disqualified (DQued) under Section 40 (e) of the Local Government Code (RA 7160) for being a fugitive of justice.  Extreme popularity could have done it for Mayor Bigote if not for the existence of a DQ case against him, but nevertheless, he was eventually proclaimed as Mayor.

The Election Office, the Constitutional body, charged with the administration of elections as well as the implementation of election laws in the country, dismissed the DQ case.  Hence, Mr. Malutong elevated this matter to the Supreme Court.  His position -section 40 (e) of RA 7160 is not ambiguous, fugitives from justice are DQued from the very beginning because the words ‘fugitives of justice’ includes not only those who flee because they have been convicted of any case whether political or not, whether committed in the Philippines or abroad.  The long hand of the law also covers those who, after being charged, flee to escape prosecution.  Is Mr. Malutong correct?

Answer:  No. Section 73 (e) of the Rules and Regulations Implementing the Local Government Code of 1991 states: “Fugitives from justice in criminal or nonpolitical cases here or abroad.  Fugitive from justice refers to a person who has been convicted by final judgment.” Since Mayor Bigote has not been convicted abroad, he cannot be DQued.  The Supreme Court held in Marquez, Jr. vs. Comelc, April 18, 1995: “when there clearly is no obscurity and ambiguity in an enabling law, it must merely be made to apply as it is so written.”  However, the High Court, in dismissing this case, mentioned that: “The Court believes and thus holds, albeit with some personal reservations of the ponente (expressed during the Court’s en banc deliberations), that Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, to the extent that it confines the term “fugitive from justice” to refer only to a person (the fugitive) “who has been convicted by final judgment.” is an inordinate and undue circumscription of the law.”

What if Mayor Bigote was previously convicted in a local criminal court and he applied for Probation, will he not be considered DQued as well?  Mayor Bigote claims that he should not be DQued because persons under probation will not serve sentence and will even be discharged.  Is he correct?

Answer:  Mayor Bigote must not be DQued.  “the grant of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as the accessory penalties of suspension from public office and from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage.” (Moreno vs. Comelec, August 10, 2006) Mayor Bigote is not DQued from running for public office during the period of probation because the accessory penalty of suspension from public office is suspended for the duration of the probation. “Clearly, the period which a person is under probation cannot be equated with service of the sentence adjudged.  Sec. 4 of the Probation Law specifically provides that the grant of probation suspends the execution of the sentence.  During the period of probation, the probationer does not serve the penalty imposed upon him by the court but is merely required to comply with all the conditions prescribed in the probation order.” (Moreno vs. Comelec, August 10, 2006). Thus, a person under probation, may run for public office.

Since Mayor Bigote won in the elections, what if Mr. Malutong files a Petition to Confirm the Disqualification or Ineligibility of Mayor Bitong Bigote for any Elective Position, claiming that Mayor Bigote was convicted for an offense, which attained finality, and sentenced to suffer the penalty of imprisonment which is  – six (6) months of arresto mayor to one (1) year and nine (9) months of prision correccional.  Will Mayor Bigote be DQued?

 Answer:  Yes.  The case of Emiliana Toral Kare and Salvador K. Moll vs. COMELEC, April 28, 2004 clearly emphasized the COMELEC ruling that: “the disqualification is based specifically on the final judgment of conviction by a court against private respondent.  This final judgment disqualified private respondent from filing his certificate of candidacy in the first instance, and continues to disqualify private respondent from holding office.  Accordingly, the votes cast in his favor were stray or invalid votes” The disqualification was based on Sec 211, number 24 of the Omnibus Election Code: “Any vote cast in favor of a candidate who has been disqualified by final judgment shall be considered as stray and shall not be counted but shall not invalidate the ballot.”  A portion of section 72 of the Omnibus Election Code as amended by RA 6646 was likewise mentioned: “Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted.”  Conviction by final judgment is indeed a ground to DQ.

What if Mayor Bigote was previously convicted for a commission of a crime which involves moral turpitude and he was sentenced to suffer the penalty of imprisonment for more than eighteen (18) months and two (2) years had already lapsed from the time that he has served his sentence.  According to Mr. Malutong, Section 12 of the Omnibus Election Code explicitly states that the disqualification to run for an elective office can only be lifted after the expiration of five (5) years from the service of sentence.  Since only two (2) years had lapsed from the time Mayor Bigote served sentence, he is DQued.  Mayor Bigote countered this by saying that under Section 40 (a) of the Local Government Code, the period of disqualification from running is only two (2) years.  Who between them is correct?

Answer:  Mayor Bigote is correct.   It is the later law, or the Local Government Code that prevails: “the Omnibus Election Code (BP881) was approved on December 3, 1985 while the Local Government Code (RA7160) took effect on January 1, 1992.  It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of legislative will.” XXX “Section 40 of RA 7160 is deemed to have repealed Section 12 of BP 881.  Furthermore, Article 7 of the Civil Code provides that laws are repealed only by subsequent ones, and not the other way around.  When a subsequent law entirely encompasses the subject matter of the former enactment, the latter is deemed repealed.” (Magno vs. COMELEC, October 4, 2002). Thus, the period of DQ after the service of sentence contemplated in Section 12 of the Omnibus Election Code is now reduced to two (2) years.

*** The characters portrayed herein are purely fictional.  Comments in this article are made by me in my personal capacity as a lawyer, and not as an employee of the COMELEC.

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