Who Gets It?

In recent developments, Mayor Bitong Bigote of the municipality of Budol was ousted from his office. Facts would show that he was found liable in a disqualification case filed under Section 68 of the Omnibus Election Code where he had given cash assistance or other material consideration to tricycle drivers and other needy persons during the election period.

The Election Court, the quasi-judicial body tasked to conduct the elections and administer election laws in the country, after handing out its decision, favored the second placer and a vicious contender of Mayor Bitong, Pepong Malutong, to take the former’s place.

Immediately, after coming to know about the controversial ruling, Vice Mayor, Dionisio Diosporo, filed an Intervention. He believes that it is he who should succeed Mayor Bitong pursuant to Section 44 of the Local Government Code on the rules of vacancies and successions.

Who gets the position now? Is it the second placer, the candidate who received the second highest number of votes during the recent national and local elections? Or is it the Vice Mayor under the Local Government Code?

I submit that it should be the Vice Mayor. Among similar cases, it is noteworthy to look into the case of Tagolino vs. HRET and Lucy Marie-Torres-Gomez, March 19, 2013, which stated: “while a
disqualified candidate under section 68 is still considered to have been a candidate for all intents and purposes, on the other hand, a person whose CoC had been denied due course to and/or cancelled under section 78 is deemed to have not been a candidate at all. The reason being is that a cancelled CoC is considered void ab initio and thus, cannot give rise to a valid candidacy and necessarily, to valid votes.” An incumbent official or a candidate may be disqualified (DQ), but not all who will replace him or her will be the second placer. A necessary distinction must be made between Section 68 and Section 78 of the Omnibus Election Code.

This scenario is akin to filing an action to separate from a spouse or to dissolve a marriage. If the ground for separation of the spouses is under Article 36 of the Family Code, it presupposes that the infirmity, which would be the cause as to why the spouses should be separated, exists at the time of the solemnization of the marriage. The result of this is the annulment of the marriage. If this is the case, the marriage is void from the very beginning, as if, there is no marriage at all. However, if the cause of separation is let us say, sexual infidelity or perversion, under Section 55 (8) of the Family Code, this can only warrant an action for legal separation where the marriage subsists. It is still valid and binding and the law can only allow the spouses, a separation of bed and board.

Simply stated: if the DQ action that was filed falls under section 78 of the Omnibus Election Code, as aptly stated in the case above, the ground for DQ already exists at the time the candidate filed his/her CoC. It is as though, there is no candidate at all and Section 6 of RA 6646 (Electoral Reforms Law) will apply: “ 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.” Since there is no candidate, the second placer, gets the position. In the case of Cayat vs. Comelec, April 24, 2007, it was declared that: “As the only candidate, Palileng was not a second placer. On the contrary, Palileng was the sole and only placer, second to none.”

If the DQ action that was filed falls under section 68 of the Omnibus Election Code, the candidate has a valid CoC. Said candidate exists, but he or she was disqualified by reason of acts committed during his/her candidacy or after he or she was elected depending on violation committed under section 68. Thus, the next-in-rank official gets the position.

Article 36 of the Family code and Section 78 of the Omnibus Election Code, Article 55 (and other related provisions) of the Family Code and Section 68 of the Omnibus Election Code, the principle is somewhat the same.

All DQ cases, if successful, will result in a vacancy of the much sought- after position, but they do not exactly guarantee who the successor will be.

***Comment/s 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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