Both Jalosjos and Cardino were candidates for Mayor
of Dapitan City, Zamboanga del Norte in the May 2010 elections. Jalosjos
was running for his third term. Cardino filed on 6 December 2009 a
petition under Section 78 of the Omnibus Election Code to deny due
course and to cancel the certificate of candidacy of Jalosjos. Cardino
asserted that Jalosjos made a false material representation in his
certificate of candidacy when he declared under oath that he was
eligible for the Office of Mayor.
Cardino claimed that long before Jalosjos filed his
certificate of candidacy, Jalosjos had already been convicted by final
judgment for robbery and sentenced to prisión mayor by the Regional
Trial Court, Branch 18 (RTC) of Cebu City, in Criminal Case No.
CCC-XIV-140-CEBU. Cardino asserted that Jalosjos has not yet served his
sentence. Jalosjos admitted his conviction but stated that he had
already been granted probation. Cardino countered that the RTC revoked
Jalosjos’ probation in an Order dated 19 March 1987. Jalosjos refuted
Cardino and stated that the RTC issued an Order dated 5 February 2004
declaring that Jalosjos had duly complied with the order of probation.
Jalosjos further stated that during the 2004 elections the COMELEC
denied a petition for disqualification filed against him on the same
grounds.
4
The COMELEC En Banc narrated the circumstances of Jalosjos’ criminal record as follows:
As backgrounder, Jalosjos and three (3) others were
accused of the crime of robbery on January 22, 1969 in Cebu City. On
April 30, 1970, Judge Francisco Ro. Cupin of the then Circuit Criminal
Court of Cebu City found him and his co-accused guilty of robbery and
sentenced them to suffer the penalty of prision correccional minimum to
prision mayor maximum. Jalosjos appealed this decision to the Court of
Appeals but his appeal was dismissed on August 9, 1973. It was only
after a lapse of several years or more specifically on June 17, 1985
that Jalosjos filed a Petition for Probation before the RTC Branch 18 of
Cebu City which was granted by the court. But then, on motion filed by
his Probation Officer, Jalosjos’ probation was revoked by the RTC Cebu
City on March 19, 1987 and the corresponding warrant for his arrest was
issued. Surprisingly, on December 19, 2003, Parole and Probation
Administrator Gregorio F. Bacolod issued a Certification attesting that
respondent Jalosjos, Jr., had already fulfilled the terms and conditions
of his probation. This Certification was the one used by respondent
Jalosjos to secure the dismissal of the disqualification case filed
against him by Adasa in 2004, docketed as SPA No. 04-235.
This prompted Cardino to call the attention of the
Commission on the decision of the Sandiganbayan dated September 29, 2008
finding Gregorio F. Bacolod, former Administrator of the Parole and
Probation Administration, guilty of violating Section 3(e) of R.A. 3019
for issuing a falsified Certification on December 19, 2003 attesting to
the fact that respondent Jalosjos had fully complied with the terms and
conditions of his probation. A portion of the decision of the
Sandiganbayan is quoted hereunder:
The Court finds that the above acts of the accused
gave probationer Dominador Jalosjos, Jr., unwarranted benefits and
advantage because the subject certification, which was issued by the
accused without adequate or official support, was subsequently utilized
by the said probationer as basis of the Urgent Motion for
Reconsideration and to Lift Warrant of Arrest that he filed with the
Regional Trial Court of Cebu City, which prompted the said court to
issue the Order dated February 5, 2004 in Crim. Case No.
CCC-XIV-140-CEBU, declaring that said probationer has complied with the
order of probation and setting aside its Order of January 16, 2004
recalling the warrant or [sic] arrest; and that said Certification was
also used by the said probationer and became the basis for the
Commission on Elections to deny in its Resolution of August 2, 2004 the
petition or [sic] private complainant James Adasa for the
disqualification of the probationer from running for re-election as
Mayor of Dapitan City in the National and Local Elections of 2004.
5
The COMELEC’s Rulings
On 10 May 2010, the COMELEC First Division granted
Cardino’s petition and cancelled Jalosjos’ certificate of candidacy. The
COMELEC First Division concluded that "Jalosjos has indeed committed
material misrepresentation in his certificate of candidacy when he
declared, under oath, that he is eligible for the office he seeks to be
elected to when in fact he is not by reason of a final judgment in a
criminal case, the sentence of which he has not yet served."
6
The COMELEC First Division found that Jalosjos’ certificate of
compliance of probation was fraudulently issued; thus, Jalosjos has not
yet served his sentence. The penalty imposed on Jalosjos was the
indeterminate sentence of one year, eight months and twenty days of
prisión correccional as minimum, to four years, two months and one day
of prisión mayor as maximum. The COMELEC First Division ruled that
Jalosjos "is not eligible by reason of his disqualification as provided
for in Section 40(a) of Republic Act No. 7160."
7
On 11 August 2010, the COMELEC En Banc denied
Jalosjos’ motion for reconsideration. The pertinent portions of the 11
August 2010 Resolution read:
With the proper revocation of Jalosjos’ earlier
probation and a clear showing that he has not yet served the terms of
his sentence, there is simply no basis for Jalosjos to claim that his
civil as well as political rights have been violated. Having been
convicted by final judgment,
Jalosjos is disqualified to run for an elective
position or to hold public office. His proclamation as the elected mayor
in the May 10, 2010 election does not deprive the Commission of its
authority to resolve the present petition to its finality, and to oust
him from the office he now wrongfully holds.
WHEREFORE, in view of the foregoing, the Motion for
Reconsideration is denied for utter lack of merit. Jalosjos is hereby
OUSTED from office and ordered to CEASE and DESIST from occupying and
discharging the functions of the Office of the Mayor of Dapitan City,
Zamboanga. Let the provisions of the Local Government Code on succession
apply.
SO ORDERED.
8
Jalosjos filed his petition on 25 August 2010,
docketed as G.R. No. 193237, while Cardino filed his petition on 17
September 2010, docketed as G.R. No. 193536.
On 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237.
WHEREFORE, the foregoing premises considered, the
Petition for Certiorari is DISMISSED. The assailed Resolution dated May
10, 2010 and Resolution dated August 11, 2010 of the Commission on
Elections in SPA Case No. 09-076 (DC) are hereby AFFIRMED.
9
Cardino filed a Manifestation on 17 March 2011
praying that this Court take judicial notice of its resolution in G.R.
No. 193237. Jalosjos filed a Motion for Reconsideration
10 on 22 March 2011. On 29 March 2011, this Court resolved
11
to consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos then filed
a Manifestation on 1 June 2012 which stated that "he has resigned from
the position of Mayor of the City of Dapitan effective 30 April 2012,
which resignation was accepted by the Provincial Governor of Zamboanga
del Norte, Atty. Rolando E. Yebes."
12
Jalosjos’ resignation was made "in deference with the provision of the
Omnibus Election Code in relation to his candidacy as Provincial
Governor of Zamboanga del Sur in May 2013."
13
These cases are not rendered moot by Jalosjos’
resignation. In resolving Jalosjos’ Motion for Reconsideration in G.R.
No. 193237 and Cardino’s Petition in G.R. No. 193536, we address not
only Jalosjos’ eligibility to run for public office and the consequences
of the cancellation of his certificate of candidacy, but also COMELEC’s
constitutional duty to enforce and administer all laws relating to the
conduct of elections.
The Issues
In G.R. No. 193237, Jalosjos argues that the COMELEC
committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it (1) ruled that Jalosjos’ probation was revoked; (2)
ruled that Jalosjos was disqualified to run as candidate for Mayor of
Dapitan City, Zamboanga del Norte; and (3) cancelled Jalosjos’
certificate of candidacy without making a finding that Jalosjos
committed a deliberate misrepresentation as to his qualifications, as
Jalosjos relied in good faith upon a previous COMELEC decision declaring
him eligible for the same position from which he is now being ousted.
Finally, the Resolutions dated 10 May 2010 and 11 August 2010 were
issued in violation of the COMELEC Rules of Procedure.
In G.R. No. 193536, Cardino argues that the COMELEC
acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it added to the dispositive portion of its 11 August
2010 Resolution that the provisions of the Local Government Code on
succession should apply.
This Court’s Ruling
The perpetual special disqualification against
Jalosjos arising from his criminal conviction by final judgment is a
material fact involving eligibility which is a proper ground for a
petition under Section 78 of the Omnibus Election Code. Jalosjos’
certificate of candidacy was void from the start since he was not
eligible to run for any public office at the time he filed his
certificate of candidacy. Jalosjos was never a candidate at any time,
and all votes for Jalosjos were stray votes. As a result of Jalosjos’
certificate of candidacy being void ab initio, Cardino, as the only
qualified candidate, actually garnered the highest number of votes for
the position of Mayor.
The dissenting opinions affirm with modification the
10 May 2010 Resolution of the COMELEC First Division and the 11 August
2010 Resolution of the COMELEC En Banc. The dissenting opinions
erroneously limit the remedy against Jalosjos to disqualification under
Section 68 of the Omnibus Election Code and apply the rule on succession
under the Local Government Code.
A false statement in a certificate of candidacy that a
candidate is eligible to run for public office is a false material
representation which is a ground for a petition under Section 78 of the
same Code. Sections 74 and 78 read:
Sec. 74. Contents of certificate of candidacy. – The
certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is
eligible for said office; if for Member of the Batasang Pambansa, the
province, including its component cities, highly urbanized city or
district or sector which he seeks to represent; the political party to
which he belongs; civil status; his date of birth; residence; his post
office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and
will maintain true faith and allegiance thereto; that he will obey the
laws, legal orders, and decrees promulgated by the duly constituted
authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that
the facts stated in the certificate of candidacy are true to the best of
his knowledge.
Sec. 78. Petition to deny due course to or cancel a
certificate of candidacy. – A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by the
person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days
before the election. (Emphasis supplied)
Section 74 requires the candidate to state under oath
in his certificate of candidacy "that he is eligible for said office." A
candidate is eligible if he has a right to run for the public office.
14
If a candidate is not actually eligible because he is barred by final
judgment in a criminal case from running for public office, and he still
states under oath in his certificate of candidacy that he is eligible
to run for public office, then the candidate clearly makes a false
material representation that is a ground for a petition under Section
78.
A sentence of prisión mayor by final judgment is a
ground for disqualification under Section 40 of the Local Government
Code and under Section 12 of the Omnibus Election Code. It is also a
material fact involving the eligibility of a candidate under Sections 74
and 78 of the Omnibus Election Code. Thus, a person can file a petition
under Section 40 of the Local Government Code or under either Section
12 or Section 78 of the Omnibus Election Code. The pertinent provisions
read:
Section 40, Local Government Code:
Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by one (1) year
or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those
who have acquired the right to reside abroad and continue to avail of
the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
Section 12, Omnibus Election Code:
Sec. 12. Disqualifications. — Any person who has been
declared by competent authority insane or incompetent, or has been
sentenced by final judgment for subversion, insurrection, rebellion or
for any offense for which he was sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein
provided shall be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been removed or after
the expiration of a period of five years from his service of sentence,
unless within the same period he again becomes disqualified.
Section 68, Omnibus Election Code:
Sec. 68. Disqualifications. — Any candidate who, in
an action or protest in which he is a party is declared by final
decision by a competent court guilty of, or found by the Commission of
having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral
functions; (b) committed acts of terrorism to enhance his candidacy; (c)
spent in his election campaign an amount in excess of that allowed by
this Code; (d) solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections
80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6,
shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident
of or an immigrant to a foreign country shall not be qualified to run
for any elective office under this Code, unless said person has waived
his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election
laws.
Revised Penal Code:
Art. 27. Reclusion perpetua. — x x x
Prisión mayor and temporary disqualification. — The
duration of the penalties of prisión mayor and temporary
disqualification shall be from six years and one day to twelve years,
except when the penalty of disqualification is imposed as an accessory
penalty, in which case, it shall be that of the principal penalty.
x x x x
Art. 30. Effects of the penalties of perpetual or
temporary absolute disqualification. — The penalties of perpetual or
temporary absolute disqualification for public office shall produce the
following effects:
1. The deprivation of the public offices and
employments which the offender may have held, even if conferred by
popular election.
2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such office.
3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.
In case of temporary disqualification, such
disqualification as is comprised in paragraphs 2 and 3 of this article
shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
Art. 31. Effects of the penalties of perpetual or
temporary special disqualification. — The penalties of perpetual or
temporary special disqualification for public office, profession or
calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected.
2. The disqualification for holding similar offices
or employments either perpetually or during the term of the sentence,
according to the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or
temporary special disqualification for the exercise of the right of
suffrage. — The perpetual or temporary special disqualification for the
exercise of the right of suffrage shall deprive the offender perpetually
or during the term of the sentence, according to the nature of said
penalty, of the right to vote in any popular election for any public
office or to be elected to such office. Moreover, the offender shall not
be permitted to hold any public office during the period of his
disqualification.
Art. 42. Prisión mayor — its accessory penalties. —
The penalty of prisión mayor shall carry with it that of temporary
absolute disqualification and that of perpetual special disqualification
from the right of suffrage which the offender shall suffer although
pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphasis supplied)
The penalty of prisión mayor automatically carries with it, by operation of law,
15
the accessory penalties of temporary absolute disqualification and
perpetual special disqualification. Under Article 30 of the Revised
Penal Code, temporary absolute disqualification produces the effect of
"deprivation of the right to vote in any election for any popular
elective office or to be elected to such office." The duration of the
temporary absolute disqualification is the same as that of the principal
penalty. On the other hand, under Article 32 of the Revised Penal Code
perpetual special disqualification means that "the offender shall not be
permitted to hold any public office during the period of his
disqualification," which is perpetually. Both temporary absolute
disqualification and perpetual special disqualification constitute
ineligibilities to hold elective public office. A person suffering from
these ineligibilities is ineligible to run for elective public office,
and commits a false material representation if he states in his
certificate of candidacy that he is eligible to so run.
In Lacuna v. Abes,
16
the Court, speaking through Justice J.B.L. Reyes, explained the import
of the accessory penalty of perpetual special disqualification:
On the first defense of respondent-appellee Abes, it
must be remembered that appellee’s conviction of a crime penalized with
prisión mayor which carried the accessory penalties of temporary
absolute disqualification and perpetual special disqualification from
the right of suffrage (Article 42, Revised Penal Code); and Section 99
of the Revised Election Code disqualifies a person from voting if he had
been sentenced by final judgment to suffer one year or more of
imprisonment.
The accessory penalty of temporary absolute
disqualification disqualifies the convict for public office and for the
right to vote, such disqualification to last only during the term of the
sentence (Article 27, paragraph 3, & Article 30, Revised Penal
Code) that, in the case of Abes, would have expired on 13 October 1961.
But this does not hold true with respect to the other
accessory penalty of perpetual special disqualification for the
exercise of the right of suffrage. This accessory penalty deprives the
convict of the right to vote or to be elected to or hold public office
perpetually, as distinguished from temporary special disqualification,
which lasts during the term of the sentence. Article 32, Revised Penal
Code, provides:
Art. 32. Effects of the penalties of perpetual or
temporary special disqualification for the exercise of the right of
suffrage. — The perpetual or temporary special disqualification for the
exercise of the right of suffrage shall deprive the offender perpetually
or during the term of the sentence, according to the nature of said
penalty, of the right to vote in any popular election for any public
office or to be elected to such office. Moreover, the offender shall not
be permitted to hold any public office during the period of
disqualification.
The word "perpetually" and the phrase "during the
term of the sentence" should be applied distributively to their
respective antecedents; thus, the word "perpetually" refers to the
perpetual kind of special disqualification, while the phrase "during the
term of the sentence" refers to the temporary special disqualification.
The duration between the perpetual and the temporary (both special) are
necessarily different because the provision, instead of merging their
durations into one period, states that such duration is "according to
the nature of said penalty" — which means according to whether the
penalty is the perpetual or the temporary special disqualification.
(Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty
of perpetual special disqualification "deprives the convict of the right
to vote or to be elected to or hold public office perpetually."
The accessory penalty of perpetual special
disqualification takes effect immediately once the judgment of
conviction becomes final. The effectivity of this accessory penalty does
not depend on the duration of the principal penalty, or on whether the
convict serves his jail sentence or not. The last sentence of Article 32
states that "the offender shall not be permitted to hold any public
office during the period of his perpetual special disqualification."
Once the judgment of conviction becomes final, it is immediately
executory. Any public office that the convict may be holding at the time
of his conviction becomes vacant upon finality of the judgment, and the
convict becomes ineligible to run for any elective public office
perpetually. In the case of Jalosjos, he became ineligible perpetually
to hold, or to run for, any elective public office from the time his
judgment of conviction became final.
Perpetual special disqualification is a ground for a
petition under Section 78 of the Omnibus Election Code because this
accessory penalty is an ineligibility, which means that the convict is
not eligible to run for public office, contrary to the statement that
Section 74 requires him to state under oath. As used in Section 74, the
word "eligible" means having the right to run for elective public
office, that is, having all the qualifications and none of the
ineligibilities to run for public office. As this Court held in Fermin
v. Commission on Elections,
17
the false material representation may refer to "qualifications or
eligibility." One who suffers from perpetual special disqualification is
ineligible to run for public office. If a person suffering from
perpetual special disqualification files a certificate of candidacy
stating under oath that "he is eligible to run for (public) office," as
expressly required under Section 74, then he clearly makes a false
material representation that is a ground for a petition under Section
78. As this Court explained in Fermin:
Lest it be misunderstood, the denial of due course to
or the cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a material
representation that is false, which may relate to the qualifications
required of the public office he/she is running for. It is noted that
the candidate states in his/her CoC that he/she is eligible for the
office he/she seeks. Section 78 of the OEC, therefore, is to be read in
relation to the constitutional and statutory provisions on
qualifications or eligibility for public office. If the candidate
subsequently states a material representation in the CoC that is false,
the COMELEC, following the law, is empowered to deny due course to or
cancel such certificate. Indeed, the Court has already likened a
proceeding under Section 78 to a quo warranto proceeding under Section
253 of the OEC since they both deal with the eligibility or
qualification of a candidate, with the distinction mainly in the fact
that a "Section 78" petition is filed before proclamation, while a
petition for quo warranto is filed after proclamation of the winning
candidate.
18 (Emphasis supplied)
Conviction for robbery by final judgment with the
penalty of prisión mayor, to which perpetual special disqualification
attaches by operation of law, is not a ground for a petition under
Section 68 because robbery is not one of the offenses enumerated in
Section 68. Insofar as crimes are concerned, Section 68 refers only to
election offenses under the Omnibus Election Code and not to crimes
under the Revised Penal Code. For ready reference, we quote again
Section 68 of the Omnibus Election Code:
Sec. 68. Disqualifications. — Any candidate who, in
an action or protest in which he is a party is declared by final
decision by a competent court guilty of, or found by the Commission of
having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral
functions;
(b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of
that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v,
and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this
Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws. (Emphasis supplied)
There is absolutely nothing in the language of
Section 68 that will justify including the crime of robbery as one of
the offenses enumerated in this Section. All the offenses enumerated in
Section 68 refer to offenses under the Omnibus Election Code. The
dissenting opinion of Justice Reyes gravely errs when it holds that
Jalosjos’ conviction for the crime of robbery under the Revised Penal
Code is a ground for "a petition for disqualification under Section 68
of the OEC and not for cancellation of COC under Section 78 thereof."
This Court has already ruled that offenses punished in laws other than
in the Omnibus Election Code cannot be a ground for a petition under
Section 68. In Codilla, Sr. v. de Venecia,
19 the Court declared:
The jurisdiction of the COMELEC to disqualify
candidates is limited to those enumerated in Section 68 of the Omnibus
Election Code. All other election offenses are beyond the ambit of
COMELEC jurisdiction.They are criminal and not administrative in nature.
(Emphasis supplied)
A candidate for mayor during the 2010 local elections
certifies under oath four statements: (1) a statement that the
candidate is a natural born or naturalized Filipino citizen; (2) a
statement that the candidate is not a permanent resident of, or
immigrant to, a foreign country; (3) a statement that the candidate is
eligible for the office he seeks election; and (4) a statement of the
candidate’s allegiance to the Constitution of the Republic of the
Philippines.
20
We now ask: Did Jalosjos make a false statement of a
material fact in his certificate of candidacy when he stated under oath
that he was eligible to run for mayor? The COMELEC and the dissenting
opinions all found that Jalosjos was not eligible to run for public
office. The COMELEC concluded that Jalosjos made a false material
representation that is a ground for a petition under Section 78. The
dissenting opinion of Justice Reyes, however, concluded that the
ineligibility of Jalosjos is a disqualification which is a ground for a
petition under Section 68 and not under Section 78. The dissenting
opinion of Justice Brion concluded that the ineligibility of Jalosjos is
a disqualification that is not a ground under Section 78 without,
however, saying under what specific provision of law a petition against
Jalosjos can be filed to cancel his certificate of candidacy.
What is indisputably clear is that the false material
representation of Jalosjos is a ground for a petition under Section 78.
However, since the false material representation arises from a crime
penalized by prisión mayor, a petition under Section 12 of the Omnibus
Election Code or Section 40 of the Local Government Code can also be
properly filed. The petitioner has a choice whether to anchor his
petition on Section 12 or Section 78 of the Omnibus Election Code, or on
Section 40 of the Local Government Code. The law expressly provides
multiple remedies and the choice of which remedy to adopt belongs to the
petitioner.
The COMELEC properly cancelled Jalosjos’ certificate
of candidacy. A void certificate of candidacy on the ground of
ineligibility that existed at the time of the filing of the certificate
of candidacy can never give rise to a valid candidacy, and much less to
valid votes.
21
Jalosjos’ certificate of candidacy was cancelled because he was
ineligible from the start to run for Mayor. Whether his certificate of
candidacy is cancelled before or after the elections is immaterial
because the cancellation on such ground means he was never a valid
candidate from the very beginning, his certificate of candidacy being
void ab initio. Jalosjos’ ineligibility existed on the day he filed his
certificate of candidacy, and the cancellation of his certificate of
candidacy retroacted to the day he filed it. Thus, Cardino ran
unopposed. There was only one qualified candidate for Mayor in the May
2010 elections – Cardino – who received the highest number of votes.
Decisions of this Court holding that the
second-placer cannot be proclaimed winner if the first-placer is
disqualified or declared ineligible
22
should be limited to situations where the certificate of candidacy of
the first-placer was valid at the time of filing but subsequently had to
be cancelled because of a violation of law that took place, or a legal
impediment that took effect, after the filing of the certificate of
candidacy. If the certificate of candidacy is void ab initio, then
legally the person who filed such void certificate of candidacy was
never a candidate in the elections at any time. All votes for such
non-candidate are stray votes and should not be counted. Thus, such
non-candidate can never be a first-placer in the elections. If a
certificate of candidacy void ab initio is cancelled on the day, or
before the day, of the election, prevailing jurisprudence holds that all
votes for that candidate are stray votes.
23
If a certificate of candidacy void ab initio is cancelled one day or
more after the elections, all votes for such candidate should also be
stray votes because the certificate of candidacy is void from the very
beginning. This is the more equitable and logical approach on the effect
of the cancellation of a certificate of candidacy that is void ab
initio. Otherwise, a certificate of candidacy void ab initio can operate
to defeat one or more valid certificates of candidacy for the same
position.
Even without a petition under either Section 12 or
Section 78 of the Omnibus Election Code, or under Section 40 of the
Local Government Code, the COMELEC is under a legal duty to cancel the
certificate of candidacy of anyone suffering from the accessory penalty
of perpetual special disqualification to run for public office by virtue
of a final judgment of conviction. The final judgment of conviction is
notice to the COMELEC of the disqualification of the convict from
running for public office. The law itself bars the convict from running
for public office, and the disqualification is part of the final
judgment of conviction. The final judgment of the court is addressed not
only to the Executive branch, but also to other government agencies
tasked to implement the final judgment under the law.
Whether or not the COMELEC is expressly mentioned in
the judgment to implement the disqualification, it is assumed that the
portion of the final judgment on disqualification to run for elective
public office is addressed to the COMELEC because under the Constitution
the COMELEC is duty bound to "enforce and administer all laws and
regulations relative to the conduct of an election."
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The disqualification of a convict to run for public office under the
Revised Penal Code, as affirmed by final judgment of a competent court,
is part of the enforcement and administration of "all laws" relating to
the conduct of elections.
To allow the COMELEC to wait for a person to file a
petition to cancel the certificate of candidacy of one suffering from
perpetual special disqualification will result in the anomaly that these
cases so grotesquely exemplify. Despite a prior perpetual special
disqualification, Jalosjos was elected and served twice as mayor. The
COMELEC will be grossly remiss in its constitutional duty to "enforce
and administer all laws" relating to the conduct of elections if it does
not motu proprio bar from running for public office those suffering
from perpetual special disqualification by virtue of a final judgment.
WHEREFORE, the Motion for Reconsideration in G.R. No.
193237 is DENIED, and the Petition in G.R. No. 193536 is GRANTED. The
Resolutions dated 10 May 2010 and 11 August 2010 of the COMELEC First
Division and the COMELEC En Bane, respectively, in SPA No. 09-076 (DC),
are AFFIRMED with the MODIFICATION that Agapito J. Cardino ran unopposed
in the May 2010 elections and thus received the highest number of votes
for Mayor. The COMELEC En Bane is DIRECTED to constitute a Special City
Board of Canvassers to proclaim Agapito J. Cardino as the duly elected
Mayor of Dapitan City, Zamboanga del Norte.
Let copies of this Decision be furnished the
Secretaries of the Department of Justice and the Department of Interior
and Local Government so they can cause the arrest of, and enforce the
jail sentence on, Dominador G. Jalosjos, Jr. due to his conviction for
the crime of robbery in a final judgment issued by the Regional Trial
Court (Branch 18) of Cebu City in Criminal Case No. CCC-XIV-140-CEBU.
