Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-52390 March 31, 1981
MANUEL I. SANTOS, petitioner,
vs.
COMMISSION ON ELECTIONS, RICARDO NAVAL and JUANITO P. FRANCISCO, respondents.
DE CASTRO, J.:
Invoked in this petition is the power of the Supreme Court to review, by certiorari, any decision, order or ruling of the Commission on Elections 1 which, in the case of Aratuc vs. COMELEC, 88 SCRA 251, was clearly defined to be confined to questions of law, particularly violations of the Constitution and/or constitutional rights. The right to due process is what has been noted to have been allegedly isolated, more than any other constitutional right, in petitions like the present which have assailed resolutions of the COMELEC holding certain candidates disqualified from running for an elective office on ground of what is popularly known as "political turncoatism. "
Where allegations of denial of procedural due process have been found to be clearly well-founded, factual or legal, We have taken the only course legally proper in the premises. We have set aside the COMELEC resolution complained against, and remanded the case to the COMELEC for the observation of the cardinal requirement of procedural due process. 2 Where municipal elective positions are involved, and the winning candidates have been proclaimed, We ordered the filing of election contests or quo warranto proceedings as may be proper. 3
In the instant case, We perceive no sign of complaint of denial of due process insofar as the sufficiently of notice and hearing is concerned. It appears that the evidence as was desired to be presented by petitioner who had duly filed his Answer, have been duly admitted for evaluation by the COMELEC. The only question presented for determination, and which We cannot avoid, is whether the COMELEC resolution under review is supported by substantial evidence, which may also be said to go into the broad concept of due process. We have examined the evidence on record, and We are satisfied that the COMELEC correctly adjudged its sufficiency to support its conclusion that petitioner was disqualified from running as NP candidate for the position of Mayor of Taytay, Rizal, by reason of violation of the constitutional provision expressly prohibiting "turncoatism", 4
as well as PD 1661 against "guest candidates."
The COMELEC in its Resolution dated January 19, 1980, the challenged resolution, on a petition seeking petitioner's disqualification filed on January 14, 1980 by above-named private respondents, as NP candidate for Mayor of Taytay, Rizal, found that " ... Santos changed his political party affiliation from the KBL as shown by the aforesaid letter-resignation dated January 2, 1980 (Exh. A), wherein he was 'tendering my resignation as MEMBER, Mun. Com. (Position) Kilusang Bagong Lipunan, Taytay, Rizal,' to the NP, his present affiliation with the NP having been expressly admitted by him (see also Exh. B); that the NP, thru its Acting President Jose J. Roy, initially revoked/withdrew the NP nomination in favor of Mr. Manuel Santos and other candidates ... because they were members of good standing of the KBL as of January 2, 1980 ... and in view also of 'the provisions of the Constitution against turncoatism' and the provisions 'of recent Presidential Decree against Guest Candidates' (Exh. G); and that the NP revoked respondent Santos' designation as Municipal Chairman of the NP in the Municipality of Taytay (Exhs. 3 & 4), although later said respondent Santos was chosen as the NP official candidate for Mayor of said municipality (Exh. 6), thereby violating Section 10, Article XII (C) of the Constitution and Presidential Decree No. 1661, as amended." 5
The facts in this case as above recited find strong resemblance, if not almost exact similarity, with those in the case of Evasco vs. COMELEC, 6 a petition like the present, which We dismissed, there being substantial evidence to support the challenged COMELEC resolution disqualifying candidate Evasco as candidate of the NP for the position of Mayor of Liliw, Laguna for "political turncoatism". In said case, this Court noted that candidate Evasco attended as a member of the 7-man municipal committee the reorganizational meeting of the leaders and members of the YBL held in the evening of November 24, 1979, and thereafter said committee organized itself on November 26, 1979 with Evasco also attending the same (Exh. C & C-1); that admittedly said Evasco submitted a letter of irrevocable resignation dated December 28, 1979 as a member of the Kilusang Bagong Lipunan (KBL) Chapter of the Municipality (Exh. B), thereby clearly showing by the aforesaid overt acts that candidate Evasco was formerly affiliated with the KBL on November 24, 1979 or earlier, but has later affiliated with the NP as shown in his certificate of candidacy for municipal mayor of Liliw, Laguna, subscribed and sworn to on December 31, 1979, (Exh. A), or within six (6) months immediately preceding the election scheduled on January 30, 1980.
Petitioner Santos, however, comes up with the contention that he has always been an NP and has never ceased to be such, even when he joined the KBL and became a member of the KBL Municipal Committee of Taytay, Rizal. He alleges with stress that KBL is not a political party when he joined it, but a mere umbrella organization, a mere movement to hasten the achievement of the goals, and firmly established the gains of the New Society, and so he cannot be said to have changed political party. 7
This argument does not appear to have been unequivocally put forth in petitioner's Answer to the petition for his disqualification (Annex C to Petition), which explains the lack of any ruling on this issue as raised by such argument, by the COMELEC in its assailed resolution. In any case, the contention was evidently rejected by the COMELEC; otherwise, it would have denied the petition for petitioner's disqualification on ground of changing political party. After Our ruling in Evasco and Gabatan, and finding striking similarity in the evidence upon which We based Our finding of the existence of compliance with the substantial evidence requirement for which We upheld the challenged resolutions of the COMELEC in those cases, particularly the act of "resigning" from the KBL, in whose municipal committees they were active members, an act obviously unnecessary unless petitioners feel that in joining the KBL then, had taken to a distinct political aggrupation from the NP which remained as a distinct, in dependent and active political party in the elections of 1978, for which COMELEC accredited NP separately from the KBL, the conclusion seems inevitable that KBL had always been a political party. Consequently, one who actively identified himself with the KBL, without any reservation that he keeps intact his full status as an NP member, had joined the KBL as a distinct aggrupation and ceased thereafter to be an NP. Double affiliation is intolerable under a party system which is the very essence of the parliamentary form of government We have adopted and have just started firmly to established.
The COMELEC's determination of whether the KBL was a political party from the inception of its existence, distinct and separate from the NP is undoubtedly an exercise of its constitutional power of administering the laws relative to the conduct of elections. This power is exclusive. Unless its exercise is tainted with error correctible by certiorari which usually takes the form of lack or excess of jurisdiction, or grave abuse of discretion, We should not disturb the orders, resolutions or other acts of the COMELEC. 8 As was said in the early case of Morrero vs. Bocar, et al., 66 Phil. 429, the decision of the COMELEC is beyond judicial interference except upon a clear showing of such arbitrary and improvident use of its power as will constitute denial of due process of law .
Under its Resolution No. 1406, promulgated December 22, 1979, laying down rules on the accreditation of political parties, Section 1 thereof provides that any duly registered political party in the April 7, 1978 election shall be entitled to accreditation. Pursuant to this Resolution, KBL was duly accredited, separately from the NP. That KBL had always been a political party or aggrupation can therefore, no longer be open to question. Were KBL not such a political party, block voting as was declared valid in the case of Peralta vs. COMELEC 9 could not have been availed of by it, as it unquestionably did, in the 1978 elections. For block voting is voting for a political party
In the light of the ruling in the cases of Evasco and Gabatan, COMELEC can by no means then be held to have gravely abused its discretion to justify Our setting aside its assailed Resolution in the instant petition. Active involvement in KBL political affairs as a party, such as being a member of the Municipal Committee thereof was the primary and decisive consideration upon which "turncoatism" was found to have been committed in the aforesaid cases. We cannot avoid coming upon the same conclusion here with how petitioner had similarly manifested his adherence to the KBL as a political party which earned for him from no less than ranking officials of the NP to which he claims unbroken affiliation their regard of him as "a KBL of good standing", for which initially, they cancelled his candidacy in the NP slate obviously in fear of his being actually a "turncoat", from KBL to NP, that COMELEC correctly found him to be.
The constitutional provision against "political turncoatism" already in force upon the effectivity of the New Constitution more than seven (7) years ago, is clearly intended to apply to all elections held under its regime, regardless of whether the holding of said elections is declared less than the 6-month period mentioned in the provision. The stance taken by petitioner that it should not apply in the last election the holding of which was announced only a month before, is clearly not tenable, even only under the well-known legal maxim that where the law does not distinguish, We should not distinguish. No right constitutionally protected under the due process is involved for petitioner to complain against lack of sufficient notice because of the less than six (6) months intervening between the declaration of the holding of an election and the day of the election. The Constitution speaks so unequivocally with its innovative and mandatory provision, obedience thereof must be imposed.
It follows that the applicability of PD No. 1661, being merely an implementation, or in furtherance, of the well-studied and wise constitutional provision is neither open to doubt. The prohibition against ex post facto law which petitioner invokes in his mistaken belief that the decree, if applied to him, is being given retrospective effect, which it is not, does not apply, as We have already so held in effect in the earlier cases of Evasco and Gabatan. The decree could by no stretch of the clear scope of the novel constitutional concept, be banned under the ex post facto law clause of the Constitution, for it merely provides, for a certain disqualification of a candidate aspiring to be chosen to an elective office which, being a mere privilege, is a fit subject for reasonable statutory regulation, clearly not penal in character. As defined, ex post facto law is limited in its scope only to matters criminal in nature. 10
We must, therefore, declare that the Resolution of the COMELEC of January 19, 1980, disqualifying petitioner and cancelling his certificate of candidacy suffers from no reversible error or infirmity. It must be enforced as if no restraining order had been issued, for in issuing the restraining order, this Court's sole purpose was to give petitioner a chance to be voted for, since the question of his disqualification could not be resolved before the elections by reason of time constraint, so that should he win and be ultimately declared by this Court not disqualified, the people's will shall have been known and should be given effect, as is the paramount object of holding elections, the instrument most valued in the exercise of sovereignty by the people to whom such sovereignty belongs.
WHEREFORE, the petition is dismissed and the Resolution of January 19, 1980 of the COMELEC should be allowed to stand with all its legal effects. No costs.
We must, therefore, declare that the Resolution of the COMELEC of January 19, 1980, disqualifying petitioner and cancelling his certificate of candidacy suffers from no reversible error or infirmity. It must be enforced as if no restraining order had been issued, for in issuing the restraining order, this Court's sole purpose was to give petitioner a chance to be voted for, since the question of his disqualification could not be resolved before the elections by reason of time constraint, so that should he win and be ultimately declared by this Court not disqualified, the people's will shall have been known and should be given effect, as is the paramount object of holding elections, the instrument most valued in the exercise of sovereignty by the people to whom such sovereignty belongs.
WHEREFORE, the petition is dismissed and the Resolution of January 19, 1980 of the COMELEC should be allowed to stand with all its legal effects. No costs.
SO ORDERED.
Barredo, Makasiar, Concepcion, Jr., Fernandez, Guerrero and Melencio-Herrera, JJ., concur.
Fernando, C.J, took no part.
Aquino, J., concurs in the result.
Abad Santos, J., is on leave.
Separate Opinions
TEEHANKEE, J., dissenting:
I dissent from the majority decision dismissing the petition of petitioner Manuel 1. Santos who was duly elected and proclaimed as mayor of the municipality of Taytay, Rizal at the local election of January 30, 1980 with an overwhelming plurality of 4,326 votes against his KBL opponent Ricardo J. Rufino (with a total of 15,463 votes against his opponent's 1 1, 137 votes) and has duly assumed the said office to which he was elected since then to the present, and upholding the questioned Comelec resolution which disqualify him on grounds of alleged turncoatism.
The Comelec's disqualification of the petitioner as an alleged turncoat from the KBL for having returned to the Nacionalista Party to which he had always belonged cannot stand factual nor legal scrutiny. His letter of resignation of January 2. 1980 from the KBL which is reproduced in full in the footnote hereof 1 shows that petitioner resigned from the KBL precisely because it had been converted into a political party separate and distinct from the Nacionalista Party to which petitioner had always belonged and therefore he was disassociating himself from the KBL "prompted by my desire to remain a loyal Nacionalista Party member." Petitioner's action of resigning from the KBL is sanctioned by no less than this Court's own solemn pronouncements in the Laban vs. Comelec case 2 prior to the April 7, 1978 elections that the KBL was but an umbrella organization and that the Nacionalistas as well as those belonging to other parties would be free in the future "to join the party of their choice assuming that the KBL will eventually evolve into a new political party." To quote from Mr. Justice Barredo, the ponente in the said case, "In other words, by nominating as its own the candidates of the KBL, the Nacionalista Party merely gave the mass of its loyal and die-hard party-men the opportunity to vote distinctly as Nacionalistas in the coming election, leaving it for the future, when political matters shall have had more time and opportunity to fully develop and firm themselves up in relation to the modes and objectives of the New Society, for each of them to join the party of their choice, assuming the KBL will eventually evolve into a new political party. Until that time comes, it would be ignoring significant historical realities and practically placing political thought in a straight jacket to recognize the KBL as the exclusive vehicle for the articulation of political ideals."
Due process and a sense of fair play demand that before the verdict of the electorate as well as the President's order as published in the February 27, 1980 newspapers directing the withdrawal of all disqualification charges against the opposition candidates who won in the elections, reserving the right of the defeated KBL candidate to file an election protest, are thus swept aside and disregarded, that a full dress hearing which may only be given an appropriate quo warranto proceeding or election protest should first be had in order to take into account all the vital facts and considerations.
The grounds of my dissent which are fully applicable mutatis mutandis to this case are extensively set forth in my dissenting opinion in the Ticzon disqualification cases 3
involving the mayoralty of San Pablo City which I hereby reproduce by reference and incorporate as part hereof, together with the separate opinion in the said cases of Mr. Justice Vicente Abad Santos, which I have hereto appended marked as Annexes "A" and "B" hereof, respectively.
The majority decision at bar runs counter and cannot be justified in the light of the liberal principles on the issue of turncoatism enunciated by a unanimous Court in the recent case of Romeo S. Gonzales vs. Comelec 4
. Much less can it be reconciled with the decision in Mitmug vs. Comelec (G.R. No. 54082) issued just this month (on March 24, 198 1), wherein the Chief Justice for a unanimous Court again reiterated that such issues are better resolved in an election protest "conclusively once and for all, instead of the parties being caught in the procedural meshes of a pre-proclamation controversy," holding that
... With the canvassing completed, and the proclamation made, private respondent emerging as the victor with right reserved to petitioner to file his corresponding election protest, this case has become moot and academic.
Moreover, this mode of disposing the case is in accordance with the invariable principle followed by this Court given its formulation as to disqualification controversies in Aguinaldo v. Commission on Elections (G.R. No. 53953, January 5, 1981), but likewise applicable to petitions raising questions more appropriately decided in an election protest, the better view as to the proceedings filed with us after January 30, 1980 is to dismiss such petitions without prejudice to having the issues forced upon in the appropriate contests before the proper agency. The time that had elapsed since the election emphasizes the validity and wisdom of such an approach. It is even more appropriate here. An election protest should settle the matter conclusively once and for all instead of the parties being caught in the procedural meshes of a pre-proclamation controversy.
I vote accordingly to grant the petition and to set aside the questioned Comelec resolution.
ANNEX "A" of Justice Teehankee's Dissenting Opinion in G.R. No. 52390 (Manuel L Santos vs. Comelec)
G.R. No. 52451 — ZACARIAS A. TICZON, petitioner vs. COMMISSION ON ELECTIONS, respondent; G.R. No. 52678 — ZACARIAS A. TICZON, petitioner vs. COMMISSION ON ELECTIONS, BOARD OF CANVASSERS OF SAN PABLO CITY and ANTONIO B. COSICO, respondents, CESAR P. DIZON, intervenor; G.R. No. 53393 — RAMON ARMEDILLA, petitioner vs. COMMISSION ON ELECTIONS and CESAR P. DIZON, respondents.
TEEHANKEE, J., dissenting:
1. This is a sorry tale that will go into the record books as the case where three (3) successive restraining orders issued unanimously by the Supreme Court enjoining enforcement of an equal number of successive Comelec resolutions arbitrarily issued ex parte after the elections (1) suspending the canvass of the election returns of San Pablo City (to prevent the proclamation of the winner); (2) replacing the original board of canvassers with a new and more pliant board and transferring the venue of the canvassing to Manila; and (3) disqualifying the winning mayoralty candidate Zacarias A. Ticzon for alleged turncoatism and directing the board to proclaim the loser Cesar P. Dizon "as the remaining winning candidate" 1 have been grossly disregarded and violated by the Comelec, and yet the Supreme Court has dismally failed (by a vote of seven (7) members against to four [4] members for) to enforce its own restraining orders and compel compliance therewith.
2. This case marks the nadir of the Comelec's credibility. Mr. Justice Abad Santos' separate dissent says it all: "This is another instance where the Commission on Elections did not live up to the high expectations of the people and of this Court. The vast powers entrusted to the COMELEC by the Constitution and statutes should have given it a sober sense of responsibility. Instead it has even dealt unfairly with this Court. Add to this its flip-flopping resolutions and we have a constitutional body whose credibility has been seriously eroded. "
3. Before, the loser's tactic was to "grab the proclamation at all costs and prolong the protest." Now, the Comelec has refused to even count the votes of the winner (in gross violation of the Court's standing February 5, 1980 restraining order) and enabled the loser to grab not only the proclamation, but the election as well with not even a right of protest by the winner. The Comelec did this by an arbitrary post-election disqualification of the winner as a "turncoat" from the Liberal Party (which had boycotted the elections as well as the previous 1978 elections and was considered by the Comelec itself as "inexistent") to Nacionalista Party and ordering the proclamation of the loser as "the remaining winning candidate" with "no opponent. " There might as well have been no elections. In the words of the late Chief Justice Fred Ruiz Castro, the loser "continues to fraudulently represent the people who had in law and in fact duly elected someone else to represent them." 2 Furthermore, the prevailing doctrine since the 1912 case of Topacio vs. Paredes 3
that the repudiated loser who succeeds in disqualifying the winner is not entitled to be proclaimed, much less to assume office, since he has not received the majority of the votes cast in the elections as well as the sovereign will of the San Pablo electorate have simply been disregarded and swept aside without even a passing nod
4. As early as one day after the elections on January 31, 1980, Dizon already exhibited the loser's perennial tantrums and filed his petition with the Comelec "for suspension of the canvass and proclamation or for nullification of the election with the usual cries of "disenfranchisement and widespread vote-buying" notwithstanding the vast powers at his disposal as incumbent KBL mayor and the utter lack of any authentic election day reports of such alleged irregularities which the Comelec certainly would have attended to, considering the alacrity with which the Comelec accommodated his every petition after the elections to thwart the winner as this case shows. (See decision at pages 5-6). The Comelec without the notice and hearing required by Section 175 of the 1978 Election Code forthwith accommodated him in its peremptory order of February 1, 1980 directing that "no canvass or proclamation shall be undertaken until further orders" which the Court set aside in its February 5, 1980 restraining order ordering the board to proceed with and terminate the canvassing — futilely as it turned out now. For where other agencies and subordinate courts generally refrain, as matter of deference, from taking any action on questions pending with this Court even where no restraining order is issued by this Court, here in gross disregard of the two restraining orders of February 5 and 14, 1980 and still the third restraining order that was issued right after the Court's hearing of February 15, 1980, as well as of the Solicitor General's assurance given solemnly on its behalf, the Comelec raced to beat the force and effects of the said orders, and has gotten away with it, as wen as beaten the contempt charges filed against it and the canvassing board which the plurality decision has just ignored.
5. At the same time, the Comelec whimsically refused to disqualify the loser Dizon on the Armedilla petition for "petitioner's failure to present sufficient evidence," when Dizon (who was elected mayor as the official Nacionalista Party candidate in the 1967 and 1971 elections but in the last 1980 elections turned coat and ran as official KBL candidate) was patently guilty of turncoatism for changing his political party affiliation during his term of office against the express prohibition of Article XII C, Section 10 of the 1973 Constitution. 4
The plurality's decision has disregarded their pledge during our deliberations of applying the same measure of "turncoatism" to Dizon and necessarily also disqualifying him.
6. What is worse, Comelec's abrupt disqualification of the winner Ticzon was against the President's own post-election order to "the lawyers of the KBL to withdraw all disqualification charges to allow already proclaimed opposition candidates involved in such cases to assure office without prejudice to filing an election protest." 5 Questioned about such order, Dizon's counsel replied that the order was just a newspaper order and they did not receive it.
7. The core issue at bar is the validity and fairness of the Comelec's Post-election disqualification of Ticzon as a turncoat for having run as an oppositionist. Liberal in 1917 and nine years later as an oppositionist Nacionalista in 1980 against the dominant KBL candidate, Dizon, who had been elected in both the 1967 and 1971 elections as the then dominant Nacionalista official candidate.
(a) The said disqualification of Ticzon should be dismissed outright by this Court for lack of substantial evidence (see my Memorandum to the Court of March 25, 1980, reproduced hereunder, at pages 4-5). In Potencion vs. Comelec 6 involving the governorship of the Province of Aurora, the Comelec, as sustained in the comment filed by the Solicitor General on its behalf, "dismissed the disqualification case against respondent for switching from Liberal Party (under which he was elected) to the KBL on the ground that 'the Liberal Party may be deemed to have become inexistent as it did not nominate candidates both in the elections of 1978 and 1980. But the Comelec inconsistently flip-flopped here and did not equally apply this reasoning and ruled in the case of the winner Ticzon who became partyless and switched from the "inexistent" Liberal Party not to the dominant KBL (as the loser Dizon did, switching from the former majority Nacionalista Party under which he was elected) but to the opposition Nacionalista Party under which he was elected) but to the opposition Nacionalista Party. This action of the Comelec violates the very spirit of the cited constitutional prohibition against turncoatism, which is to curtail opportunism and desertion of the opposition ranks;
(b) The Comelec's disqualification of Ticzon likewise denied him "the rudimentary requirements of fairplay [which] demand that [he] be afforded ample opportunity to prove" his defenses against the charge of turncoatism — to borrow the very phrase of Mr. Justice Ramon C. Aquino for a unanimous Court in Gonzales vs. Comelec. 7 In setting aside therein the Comelec disqualification of the winner of the election for the mayoralty of Polangui, Albay, and the proclamation of the loser (because the winner's votes were considered as stray votes and not counted, as in Ticzon's case here), Mr. Justice Aquino pointed out that he was denied procedural due process: "(T)he Comelec disqualified Gonzales without hearing his evidence. It denied his motion for reconsideration in a somewhat high-handed or cavalier manner. It did not bother to resolve the factual issues raised in the affidavits supporting his motion for reconsideration. There is no finding as to when the KBL became a duly accredited political party. Moreover, the release of the disqualification resolution on the eve of the election was quite unfair and disconcerning to Gonzales," — which considerations are fully applicable to the present case; and worse, Ticzon was disqualified 16 days after the election and on the eve of his proclamation!
(c) The Comelec's post-election, disqualification of the winner Ticzon offends all notions of fair play and equal protection as well as of substantive due process and transgresses the constitutional injunction that all "bona fide candidates shall be free from any form of harassment and discrimination. 8 Here, Ticzon's case, like that of Antonio O. Singco the opposition winner of the last mayoralty election for Ginatilan Cebu (whose arbitrary post-election disqualification on February 26, 1980 by the Comelec was set aside by a unanimous Court in Singco vs Comelec 9, was arbitrarily, whimsically and discriminatorily plucked by the Comelec from hundreds of pending disqualification cases in order to select the losers as the winners with "no opponent by disqualifying the elected winners and not counting their votes as "stray votes"; and
(d) In Arcenas vs. Comelec 10 the Chief Justice, speaking for a unanimous Court, essayed to write finish to all such pliding disqualification cases still being utilized to harass the winners and clear the Court's dockets by restating that "It is now the prevailing doctrine that after an election duly held and a proclamation [of the winner] thereafter made, a preproclamation controversy should no longer be viable" and "resort [must] be had to the remedy of an election protest or a quo warranto, whichever is proper." This doctrine has been affirmed and reaffirmed in all subsequent cases, the latest being Agcaoili vs. Santos and Comelec. 11 In this latest case, the Court thru the Chief Justice once again reiterated election day January 30, 1980, as the cut-off date and that disqualification cases which had not been acted upon prior to date by the Comelec "should be dismissed without prejudice to such ground being passed upon in a proper election protest or quo warranto proceeding." Inexplicably, this settled doctrine has not been applied to the present case of Ticzon who should have long been proclaimed the winner (since January 31st and at the latest in February of last year pursuant to the Court's three restraining orders) and assumed his rightful office pursuant to the electorate's verdict.
8. In Esquivel vs. Comelec, 12 a plurality of six members of the Court sanctioned the Comelec's belated unseated of petitioner as mayor of Palayan City despite the lapse of almost two months since his assumption of office, on the ground that the canvassing board which proclaimed him was "illegally constituted" and "as such its acts are patent nullities without force and effect in law" because its chairman, the election registrar, was not a lawyer as directed by section 11 of B.P. Blg. 52, although said board was constituted according to the Comelec's own guidelines, which imposed no such requirement. Then all the more so, should the unjustifiable act of the new canvassing board of proclaiming Dizon as the "remaining winning candidate" with "no opponent" be deemed a "patent nullity without force and effect in law" by virtue of the Court's restraining orders of February 14 and 15, 1980 enjoining enforcement of the Comelec orders replacing the original board and ordering Dizon's "proclamation."
9. The plurality decision's assertion (at page 8) that "this Court's second restraining order of February 14, enjoining the canvass by the newly constituted board of canvassers, was useless. It was useless because of the Comelec's prior resolution of February 12, disqualifying Ticzon and ordering the proclamation of Dizon. By reason of Ticzon's disqualification, there was no need to canvass or determine the votes for him as tallied in the election returns," 13 is untenable, because:—
— The Court's first restraining order of February 5th directed the canvassing board to disregard the Comelec's suspension of the canvass and "to proceed with the canvassing" and count, of course, the votes of both Ticzon and Dizon, and the board acknowledged the same and pledged compliance therewith in its February 7th telegram;
— This triggered the Comelec's arbitrary order replacing the original board and transferring the venue to Manila, which was also enjoined by the Court's second restraining order of February 14th; and hence, the new board was "illegally con stituted and its acts were "patent nullities" - in the language of Esquivel supra.
— This Court's second restraining order of February 14th can hardly be down graded as "useless ". Ticzon's 11 th hour disqualification by the Comelec resolution dated February 12, 1980 but released only on February 14, 1980 when the canvassing showed Ticzon with an insurmountable margin of 2,994 votes with only 62 more precincts to be tallied was another i patent nullity" in gross violation of the Court's first restraining order, which ordered that the board and Comelec canvass Ticzon's votes, as well as of the Court's third restraining order of February 15th which expressly enjoined enforcement of the Comelec's 1 1th hour disqualification of Ticzon;
— As admitted in the plurality decision, (at pages 7 and 8), the Court's second restraining order restraining the canvass in Manila by the newboard "was [timely] served in (sic) the Comelec at ten o'clock in the morning of February 15, 1980 when the recanvass was about to be terminated." The excuse that it took up to 4:30 p. m. that day for the Comelec records section to send a copy of the restraining order to its Law Department, which in turn took more than 24 hours until 5:30 p.m. of the next day, February 16, to forward a copy to the Comelec chairman, whereas Dizon had been proclaimed at past 6:00 p.m. of the preceding day, February 15, is of no consequence, prescinding from the outrageous incredibility of the excuse;
— For on that very afternoon of February 15th the Court was hearing Ticzon's urgent petition for a restraining order against his 11th hour disqualification (which he learned of only on the preceding day) and then Assistant Solicitor General, now Court of Appeals Justice, Vicente V. Mendoza in representation of the Comelec solemnly manifested in open court that he was assured by the Comelec chairman and officials that pending the Court's action on the petition before it, they would not implement the questioned Comelec order to proclaim Dizon as the only remaining candidate. Assistant Solicitor General Mendoza was so visibly shocked when it turned out that as he gave Es assurance at the hearing, the new board was at that very hour rushing its proclamation of Dizon, that at the subsequent hearing of February 26, 1980 to set aside Dizon's proclamation and to hold the Comelec in contempt, he candidly stated to the Court that on his own, he was recommending to the Comelec and to this Court the setting aside of Dizon's proclamation. Callous proof of the Comelec's forfeiture of "a sober sense of responsibility" is its obdurate failure to heed its own counsel's recommendation and set aside Dizon's railroaded "proclamation" against its chairman's plighted word.
— No matter. Prescinding from the nullity of said proclamation and the brazenly oppressive and arbitrary action of the Comelec, it lies within the inherent power of tile Court to enforce its restraining order against the parties who were racing to beat the order and to set aside the "proclamation" and restore the status quo, as this Court has done in many such other cases.
10. The plurality decision's pronouncements to the effect that the Comelec's findings are sacrosanct and that "there is no justification for this Court to interfere with the actions taken by the Comelec" (at page 11, et seq. are an untenable abdication of the Court's constitutional power and duty of review over the Comelec 14 and have no justification in law and in fact.
In law: Ironically, the cited case of Vinzons 14-a manifests the Court's reluctance to disturb the Comelec's rulings "on facts and matters of equity ... to assure the sanctity of the ballot, exercised freely by the voters as "particles of sovereignty" — but has no application when the Comelec serves as the very instrument of oppression to thwart the people's will and impose on them the repudiated loser as the "remaining winning candidate" with "no opponent". When the Comelec makes the baseless finding in its disqualification resolution that "the records do not disclose that [Ticzon] resigned his membership from the said Liberal Party. Neither was he expelled from his party On the contrary, the affidavit of Ex-Vice Mayor Pedro Magcase shows 'that Ticzon remained with the Liberal Party.' All other documentary evidences on record indicate his continuance as member in good standing of the liberal Party," (at page 12, decision). such baseless finding cannot be "binding and conclusive on this Court," as asserted by the plurality decision (at page 13). Contrary to the Comelec's incorrect statement, the documentary evidence of record amply shows that both former Congressman Manuel Concordia as LP chairman for the Laguna first congressional district and LP president Gerardo Roxas had submitted sworn statements that Ticzon had been expelled from the Liberal Party for having run as a rebel Liberal candidate in the 1971 elections (resulting in the victory of the Nacionalista Party candidate Dizon, now KBL, and the defeat of the disgruntled official Liberal Party candidate, ex-vice mayor Pedro MagCase upon whose barren affidavit the Comelec solely relied for its "finding" that "Ticzon remained with the Liberal Party" which the Comelec itself had held to be now "inexistent" since it had not participated in the 1978 and 1980 elections. So how could Ticzon be a turncoat from an "inexistent" Liberal Party?) The plurality decision itself does not even mention these vital documents that reveal the baselessness of the Comelec's "finding" which it pronounces as "binding and conclusive.
In Fact: As Mr. Justice Abad Santos justly observed in his dissent in Omar vs. Comelec," 15 (T)he proposition that this Court should sparingly use its power of review over the COMELEC because it is an independent constitutional body is correct by this is one case where we should firmly exercise our power because of the flip- flopping resolutions of the Comelec." These "flip-flopping" resolutions have had to be "interfered with" and stricken down by this Court in a far greater number of decisions of this Court than at any other time, as listed in the footnote. 16 None of these cases approximates the brazenly oppressive and arbitrary actions of the Comelec in this case.
11. I have always maintained that all pre-election cases seeking to disqualify the winner simply on the ground of alleged turncoatism should be ordered dismissed after the last January 30th elections, subject to the filing of an appropriate quo warranto action or election protest against the winner in the appropriate forum.
The people's will and undeniable right to have officials of their unfettered choice will thus be respected pending the final outcome of such protest, which depends upon so many factual and other relevant considerations as set forth hereinbelow. (See memoranda reproduced hereunder)
In Venezuela vs. Comelec 17 (where the Court upheld the Comelec's action in refusing to disqualify the mayor-elect of Pozorrubio for turncoatism, for having switched like Dizon from the then majority NP under which he was elected in 1971 to the now dominant KBL), I pointed out in my separate concurrence that "Respondent Comelec in its Comment of May 8, 1980 filed by Solicitor General Estelito P. Mendoza takes the position that '(I)t is worth noting that the people of Pozorrubio, Pangasinan have spoken and their choice to be their mayor is the private respondent. The will of the electorate of Pozorrubio, Pangasinan should be respected. In Cancerian v. Comelec, 107 Phil. 607, this Honorable Court held that the courts must give the voice of the electorate efficacy and not stifle or frustrate it. Also of particular relevance is the ruling of this Honorable Court in Lino Luna vs. Rodriguez, 29 Phil. 208, and De Guzman vs. Board of Canvassers, 48 Phil. 211:
It has been announced in many decisions that the rules and regulations for the conduct of elections are mandatory before the election, but when it is sought to enforce them after the election, they are held to be directory only, if that is possible especially where, if they are held to be mandatory, innocent voters will be deprived of their votes without any fault on their part. The various and numerous provisions of the Elections Law were adopted to assist the voters in their participation in the affairs of government and not to defeat that object.
I concluded therein that "(I)t is to be devoutly wished that the Comelec apply equally and consistently this salutary position in all pending pre-proclamation cases (many of which are still pending in this Court involving on the whole opposition party winners sought to be disqualified)."
12. The public interest demands the prompt proclamation and assumption of office by the true and rightful winner of the election and he and the sovereign will of the electorate may be thwarted if at all — not in administrative and summary preproclamation proceedings of the Comelec — but only after a full-dress hearing in accordance with due process wherein the parties are afforded full opportunity to present all evidence relevant to the issue of disqualification of the winner because of alleged turncoatism and the verdict of the Comelec (for provincial and city officials) or of the CFI (for municipal officials) shall have passed the final action of this Court.
Pending such final action, the losing candidate repudiated by the people (who would not be entitled to proclamation even if the winner were to be disqualified for turncoatism, since he has not received the required plurality of the votes cast in the election) should not offend the sovereign will of the people who rejected him by assuming office (as an aftermath of the comelecs arbitrary disqualification of the winner) as the "remaining winning candidate" with "no opponent."
13. When one takes into account an the relevant issues on "turncoatism" (see memoranda, infra, at pp. 20-26 hereof) and considers that by this Court's own pronouncements in the Peralta and Laban cases of 1978 that the KBL until the sudden calling of the January 30, 1980 local elections (the first ever to be held) was but an umbrella organization of all pre-martial law political parties whose activities were all suspended during martial law, the "turncoatism" provision should in all fairness be declared inoperative for the said 1980 elections in the same manner that it was declared inoperative in the 1978 elections, for it would have thereby disqualified all KBL candidates in the said elections as turncoats for switching to the dominant KBL.
14. In the course of the long pendency of these cases before the Court, I submitted two memoranda of March 25, and May 7, 1980 to the Court on the antecedents and issues of the cases at bar which because of time constraints I can no longer rewrite and therefore reproduce verbatim 18 hereinbelow, in amplification of the foregoing considerations for my dissent which were focused on the plurality decision's rationale.
Memorandum on the overriding and compelling considerations for enforcing the Court's restraining orders of February 5, 1980, February 14, 1980 and February 15, 1980 and upholding the Supreme Court's dignity and the force and effect of its orders and processes in the Ticzon vs. Comelec cases, G. R. Nos. 52451 and 52678. (March 25, 1980)
I. Antecedents. — Before, the loser's slogan was to "grab the proclamation and prolong the protest." Now, the loser with the active support of the Comelec, would not even count the votes of the winner but would grab the proclamation and the election by a post- election disqualification of the winner. One would be hard put to find a series of brazenly oppressive and arbitrary actions on the part of the Comelec in pursuing such an unworthy purpose and nullifying the win of the electorate.
The petitioner, Zacarias A. Ticzon, came timely to this Court four (4) times for relief from the oppressive and arbitrary orders of the Comelec and three (3) times this Court issued separate restraining orders to stop the Comelec, which orders were nevertheless frustrated and disregarded by the Comelec as may be seen from the following summary.
1. On February 1, 1980, the Comelec Chairman without any given reason issued a directive to the provincial election officer of Laguna "to stop the canvassing of the votes for city positions from Mayor, Vice-Mayor and Members of Sangguniang Panglungsod in the City of San Pablo and that rio canvass or proclamation shall be undertaken until further orders from his Commission." Upon petition of petitioner Ticzon who attached thereto the quick-count certificate based on the duplicate originals of election returns of San Pablo City as submitted by the chairman of the Citizens' Election Committee showing that Ticzon had won the mayoralty by a majority of 2,204 votes together with his entire Nacionalista ticket, the Court issued its restraining order of February 5, 1980 restraining the Comelec from enforcing the said directive insofar as it suspended the canvassing" and "directing the City Board of Canvassers to proceed with the canvassing of the election returns."
2. While the City Board of Canvassers in a telegram dated February 7, 1980 informed this Court that it would comply with said restraining order, petitioner filed an urgent motion on February 8, 1980 complaining that the Comelec without any explanation changed the original composition of the Board of Canvassers and designated in their stead three (3) lawyers who arrived at San Pablo City to comply with still another directive of the Comelec to bring the election returns and other records to Manila for the canvassing notwithstanding that no untoward incident had been reported nor any anomaly recorded during the canvassing by the original Board of Canvassers that was peremptorily suspended by the Comelec. The Court issued its restraining order of February 14, 1980 enjoining the Comelec from enforcing its directly that the canvassing of The election returns be conducted by a new Board of Canvassers in Manila at the Comelec's Election and Barangay Affairs Department (instead of by the City Board of Canvassers in San Pablo City). the second restraining order of the Court was issued too late, six (6) days after the filing of the urgent motion to stop the returns from being transferred to Manila. The new Board of Canvassers escorted by heavily armed troopers had lost no time in taking possession of the ballot boxes and transporting them in a closed van to which the assigned NP representative was denied access.
3. On February 15, 1980, Ticzon had to file a still more urgent petition complaining that on the preceding day, February 14, 1980, while the new Board of Canvassers was still in the process of canvassing results from 213 voting centers out of a total of 275 which had been already tallied showing that Ticzon was leading his opponent Cezar P. Dizon (the incumbent KBL mayor) by an insurmountable margin of 2,994 votes (22,871 votes for Ticzon and 19,877 votes for Dizon) with only 62 election returns not yet canvassed which could not affect the result, the Comelec released its resolution dated February 12, 1980 granting a voter's petition for the disqualification of Ticzon for alleged turncoatism (while at the same time leaning unresolved another voter's petition for the disqualification of Dizon who had been elected as mayor as a Nacionalista in 1971 and changed his political affiliation to KBL on January 3, 1980) and resolved "not to give due course to the Certificate of Candidacy of respondent Zacarias Africa Ticzon, who is hereby ordered as disqualified, and hereby orders the City Board of Canvassers of the city of San Pablo to consider all votes cast in favor of respondent Ticzon as stray votes; and, consequently, orders the City Board of Canvassers of San Pablo City to proclaim the remaining winning candidate for the position of Mayor of San Pablo City, Laguna."
The Court held a hearing on the case in the afternoon of February 15, 1980 and Assistant Solicitor General Vicente V. Mendoza who represented the Comelec formally manifested in open court that he was given assurance by the Comelec officials that they would not implement the questioned resolution (No. 985) pending the Court's action on Ticzons petition. After the hearing, the Court did issue its restraining order of February 15, 1980 restraining the Comelec "from implementing the questioned resolution 'not to give due course to the certificate of candidacy of respondent Zacarias Africa Ticzon' (Annex K of the Petition), the City Board of Canvassers thus being enjoined from proclaiming the only other candidate for City Mayor of San Pablo City, the canvassing of the election returns to continue with the votes of both candidates counted "
4. But Ticzon's travails were still far from over. His complete votes which did show him to be the clear and uncontested winner of the elections remained uncounted and uncanvassed notwithstanding this Court's direct orders of February 6 and February 14, 1980 to the Comelec and to the Board of Canvassers to do so. Worse, late on that very same afternoon of February 15, 1980, the new Board of Canvassers, in gross disregard and defiance of this Court's restraining order of February 14, 1980 enjoining the enforcement of the Comelec "directive that the canvass of the election returns be conducted by a new Board of Canvassers in Manila," on the pretext that it had not been advised of the Comelec's commitment that it would not implement its questioned resolution disqualifying Ticzon and directing the canvassing board to proclaim the loser and repudiated candidate Dizon as "the remaining winning candidate" (notwithstanding that it was in the very premises of the Comelec in Manila), nevertheless issued its certificate of canvass and proclamation proclaiming "Cezar P. Dizon (no opponent)" as having received the plurality of the votes legally cast for the office of mayor, after discarding all the notes of Ticzon as stray notes. (In the same proclamation certificate, the entire Nacionalista ticket, carried by Ticzon was perforce proclaimed.) Once again for the fourth time, Ticzon appealed to this Court for relief through his urgent petition and contempt petition, both dated February 18, 1980, and his urgent motion of February 22, 1980 and urgent petition of March 1, 1980, all asking the Court to maintain the status quo and as prayed for in the urgent petition of February 18, 1980 to set aside the proclamation of Dizon if he would have already been proclaimed by the Board of Canvassers as of the time of the issuance of this Court's restraining order of February 15, 1980 after the hearing on that day as originally prayed for by Ticzon both in his petition of February 15, 1980 and at the said hearing.
Ticzon's urgent petitions of February 18 and 22, 1980 were set for hearing and heard by us in the afternoon of February 26. At the hearing, Assistant Solicitor General Mendoza was frank enough to state oil his own that he recommended to the Comelec and to this Court the setting aside of the proclamation of Dizon and that upon proper petition all the NP's or Liberals who turned KBL at the last elections should also be disqualified on the charge of turncoatism. At the end of the hearing, there was a clear consensus to apply the same formula applied in the Pimental case of Cagayan de Oro City, i.e., annul the proclamation of Dizon and complete the canvassing and proclaim the winning candidate (Ticzon) and remand the case of disqualification to the Comelec for a full-dress hearing thereon with the winning candidate Ticzon being proclaimed and allowed to assume office if the question of his disqualification has not been resolved by the Comelec on March 3 (the date set by law for assumption of office). The issuance of the formal resolution to this effect, however, was deferred to February 28, 1980 in deference to some absent members and has since bogged down and been left, unresolved up to now. Justice Vicente A bad Santos who was scheduled to leave on February 28, 1980 in fact left his written note of February 27 with the Chief Justice stating the following:
I have to refer to the cases of Zacarias A. Ticzon vs. COMELEC, et al. (G.R. Nos 52451 and 52678). Since I will be abroad in the service of our country, I beg leave to set forth my position in respect of several issues, namely:
1. I am for setting aside the proclamation of Cesar P. Dizon as Mayor of San Pablo City.
2. I am for the continuance of the canvass of all election returns for the office of Mayor of San Pablo City, In the canvass the votes cast in favor of Zacarias A. Ticzon should be counted and should not be considered as stray votes
3. If Ticzon turns out to have the plurality of votes and the question of his disqualification is not resolved by The COMELEC in a full dress hearing before March 3. 1980, he should be proclaimed as the duly elected Mayor of San Pablo City and allowed to assume office.
4. The proclamation and assumption of office by Ticzon will be prejudice to any appropriate proceeding against him. "My position in the Ticzon case applies to all other similar cases pending before us, and I request that you certify my vote therein accordingly.
Even if we were to apply solely the criterion of substantial evidence, I hold that Ticzon is entitled to an outright dismissal by this Court of the disqualification case against him. The Comelec in its belated resolution of disqualification of February 12, 1980 disqualified Ticzon on the following rationale:
... It appears from the pleadings and exhibits that on December 28, 1979 respondent filed his certificate of candidacy as an Independent (Exhibit 'B'). That on December 31, 1979, he withdrew his Certificate of Candidacy (Exhibit 'C') and on January 7, 1980, he filed his second certificate of candidacy as a member of the Nacionalista Party (Exhibit 'D'). It appears, however, that on November 8, 1971, he filed his certificate of candidacy for Mayor in San Pablo City, as a member of the Liberal Party (Exhibit 'A'). The records do not disclose that he resigned his membership from the said Liberal Party. Neither was he expelled from his party. On the contrary the affidavit of Ex-Vice Mayor Pedro MagCase shows respondent remained with the Liberal Party. All other documentary evidence on record indicate his continuance as member of good standing of the Liberal Party.
But the Comelec's statement was far from fair nor complete. It failed to mention the evidence of record that Ticzon had run as a rebel Liberal candidate in 1971 for the same office of mayor by virtue of which he was expelled from the Liberal Party as attested in a verified statement of former Congressman Manuel Concordia then Liberal Party district chairman for the Laguna first congressional district and in the sworn certificate of Sem Gerardo Roxas, president of the Liberal Party, confirming such expulsion It failed to mention further that it had failed to act on the pending petition for disqualification against Dizon for being an NP turncoat who changed his party affiliation to KBL only upon filing of his certificate of candidacy on January 3, 1980. The Solicitor General's answer to the petition assailing the questioned disqualification resolution is a bit more candid, as follows:
... Even if, as argued, Comelec should not have relied on this evidence alone but should, likewise, consider the affidavit of Manuel Concordia, the contents of which are certified to by Gerardo Roxas, the result would substantially be the same. The two affidavits would merely offset and neutralize each other which would leave the following undisputed facts: that petitioner was a Liberal in 1971 and that on January 7, 1980 he filed his certificate of candidacy as a Nacionalista candidate.
The undisputed facts that remain after mutual neutralizing or offsetting of the contradictory affidavits as stated by the Solicitor General should be that Ticzon was a Liberal in 1971 and that on January 7, 1980 or 9 years later he filed his certificate of candidacy as a Nacionalista candidate after having filed an earlier certificate of candidacy as an independent. This bare evidence certainly cannot constitute in any language substantial evidence that would warrant his disqualification for turncoatism. On the contrary, it amply shows that he had long left his party affiliation of a Liberal which incidentally was not taking part in the elections since it had boycotted the same as well as the 1978 Interim Batasang Pambansa elections.
Finally, the possible argument that may be raised that these proceedings have become moot since Dizon has already been proclaimed and assumed office is of no consequence. We have already issued a good number of restraining orders setting aside stich assumption of office pending our determination of the cases before us as in the cases of Renato Reyes, Yason et al This is but in accordance with settled precedents such as the resolution that we issued on December 10, 1973 in L- 37384, Villegas us. Salvador, wherein "upon motion of petitioner, the Court RESOLVED to clarify the writ of preliminary injunction issued on October 19, 1973, enjoining the respondent judge from enforcing his decision dated June 15, 1973 in Civil Case No. C-2261 and private respondent Domingo de Jesusfrom continuing further in exercising the office as councilor of Malabon, Rizal, to the effect that said writ of preliminary in- junction affirms the right of and authorizes petitioner Vinegas to assume and exercise the office of councilor of Malabon, Rizal, until further orders, pursuant to Section 218 of Republic Act No. 6388, otherwise known as the Election Code of 1971. " The Court's authority to uphold its restraining orders or in- junctions so as to restore matters to the status quo in cases where the adverse party has beaten the injunction or restraining order has consistently been affirmed by us as in Banzon vs. Cruz (45 SCRA 506), where we reaffirmed that "the Court does not look with favor upon parties 'racing to beat an injunction or restraining order' which they have reason to believe might be forthcoming from the Court by virtue of the filing and pendency of the appropriate petition therefor. Where the restraining order or preliminary injunction are found to have been properly issued, as in the case at bar, mandatory writs shall be issued by the Court to restore matters to the status quo ante. "
II. Disqualification cases. — All such pre-election cases seeking to disqualify the winner on the ground of turncoatism should be dismissed subject to the filing of an appropriate quo warranto action or election protest against the winner in the appropriate forum. I believe that this is the only practical course for the Court to follow (as indicated by Justice Vicente Abad Santos in his vote) if we are to get on with the Court's business in the other equally important cases that confront us and if we are to remove the spectacle where two months after the elections of January 30th the real winners in some localities are still unproclaimed or have not yet assumed office. The President seems to share this view, having been reported in the February 27, 1980 newspapers to have "ordered the lawyers of the KBL to withdraw all disqualification charges to allow already proclaimed opposition candidates involved in such cases to assume office. Even with the withdrawal of these cases, the KBL lawyers can still reserve the right to file an election protesta the President said. The President noted the numerous disqualification cases filed by the KBL against some winning opposition candidates. " This position is basedon a good number of compelling considerations which we may in the main briefly summarize, as follows:
1. The people's will and undeniable right to have officials of their unfettered choice should be respected in the meantime and innocent voters should not be deprived of their votes without any fault on their part What I said in the Pimentel case applies to all other cases mutatis mutandis, as follows:
As the Court has consistently held in an unbroken line of cases, 'after the termination of the election, public interest must be made to prevail over that of the defeated candidate'(De Guzman vs. Board of Canvassers, 48 Phil 211 [1925], citing Lino Luna vs. Rodriguez, 39 Phil. 208 [19181. As stressed by the now Chief Justice in Badelles vs. Cabili (27 SCRA 121 [1969], it is [the people's] undeniable right to have officials of their unfettered choice.' Thus, we have invariably held that the will of the electorate should ever be respected, not defeated or frustrated by materials defects in the winning candidate's certificate of candidacy (including one not being a registered elector in the very municipality where he was nevertheless elected president of Meycauayan, Yra vs. Abaño, 52 Phil. 380 [1928], which while mandatory before the elections (and would therefore render null and void the certificate of candidacy) were held to be directory only after the election, as otherwise 'innocent voters will be deprived of their votes without any fault on their part.' (Lino Luna, supra; also Canceran vs. Comelec, 107 Phil 607 [1960], Corocoro vs. Bascara, 9 SCRA 522 [1963], Pungutan vs. Abubakar, 43 SCRA 11 [19721; and Lacson, Jr. vs. Posadas, 72 SCRA 170 [1976]).
Consistently with the above-cited jurisprudence, and with the Court's now setting aside the Comelec summary resolution of January 28, 1980 disqualifying Pimentel by not giving due course to his certificate of candidacy for alleged tumcoatism (when he has always been Identified with the oppositionist cause and has now been elected as such but which was restrained in our Order of January 29, 1980, the summary case in the Comelec has now become functus oficio, with the electorate having been allowed to express their sovereign will and clear choice of Pimentel at the elections (instead of what would have been a non-election where the elects-ate could not even vote yes or no for his defeated opponent who would have been the remaining unopposed candidate). Now that Pimentel has been overwhelmingly elected, the only course left is to file an election contest under section 189 of the 1978 Election Code.
2. Equally important under the prevailing doctrine of Topacio vs. Paredes (23 Phil 238), the repudiated candidate and loser in the election who succeeds in disqualifying the winner is not entitled to be proclaimed much less to assume office, since he has not received the plurality of the votes cast in the elections. If during the pendency of an action for disqualification, no one qualifies for the questioned position (of mayor in the Ticzon case), under the law it is the duly proclaimed and elected vice mayor who assumes the contested office (section 8, Batas Pambansa Blg. 51).
3. The winning candidate especially after he has received the approbation of the electorate is entitled to due process and a full-dress hearing so that the circumstances relied upon to sustain the charge of alleged turncoatism may be duly threshed out with confrontation and examination of witnesses and his good faith or bad faith, as the case may be, may be duly determined. Ticzon also has ground to complain as he has in his urgent motion of March 1, 1980 where unlike other candidates in the same situation as his facing charges of disqualification for turcoatism such as Pimentel of Cagayan de Oro City and Nepomuceno in Sta. Rosa, Laguna, these candidates notwithstanding their prenious disqualification by the Comelec were nevertheless proclaimed as winning candidates by order of the Comelec itself.
4. There are a number of vital facts that have to be established and duly taken into consideration in a full-dress hearing, among them the lack of fair notice and suddenness with which the January 30th elections were called when as late as November 16 and November 21, 1979 it was being reported by the newspapers that local elections have been set for December 7, 1980,(1) with the President leaving been reported on November 22, 1979 as notifying the Comelec that "local elections will be held either before the end of next year 1980 or in early 1981(2) until suddenly on December 16, 1979 it was reported that the President asked the Batasang Pambansa toset the local elections for January 30th which was so fixed by the Batasang Pambansa. On January 4, 1980, the deadline for filing of certificates of candidacy, "the President was reported to 'uphold NP's right to field candidates' stating that 'the policy should be to allow fair, free and open right among the aspirants from the gubernatorial to the sanggunian position' and that 'it is obvious, the President told newsmen, that in most places, the fight will be between the KBL and the NP. 'That would make the NP the opposition in the coming elections,' the President continued." (3)
It is important that all the circumstances and facts be duly brought out because even in the cases of those who were seeking an official nomination and affiliation as KBL candidates in the light of the undisputed situation that during this entire period of martial law — going into the 8th year now — the activities of political parties had been suspended and there was only one dominant organization serving as an umbrella organization which is the KBL which admittedly was organized as a political party only in December 1979 after the calling of the elections and that all local officials held office at the pleasure of the President and were exhorted to support the KBL organization and could be removed even before the elections as in fact a number of them were so removed as in the case of the Mandaluyong mayor.
The question of fairness and equal protection of the laws also comes into serious consideration when we take the case of Assemblyman Edelmiro Amante whose contention before this Court was that he has always been a Nacionalista and his disqualification by the Comelec from running for the office of governor of his home province of Agusan del Sur on the ground that he had been elected as a KBL assemblyman was set aside by this Court and yet after the elections he and a number of others who supported or ran as Nacionalista candidates had been accepted back into the KBL ranks in the Batasan Pambansa.
5. Some of the KBL candidates with pending cases of disqualification against them invoke P.D. 1667 decreed onJanuary 26, 1980 amending section 1 of P.D. 1661 by inserting the proviso "that a person who participated as an officer in the campaign of a political party, group or aggrupation in the immediately preceding elections shall be deemed a member of such party as of the date of the political campaign for purposes of nomination as official candidate of such party in succeeding elections." The Comelec in the cases resolved by it in favor of the KBL candidates has simply dismissed the petitions of turncoatism "for lack of sufficient basis" without invoking P.D. 1667. Indeed, this P.D. has been assailed for having been tailored to rescue the KBL candidates from the clear charges of turncoatism against them and for denying equal protection of the laws and for violating the cited constitutional injunction that all "bona fide candidates shall be free from any form of harassment and discrimination. "
6. The cited prohibition against change of political party affiliation must be so construed so as not to collide with the right guaranteed by the Constitution such as the right of free association As stated by the Court itself in the Peralta case, "a narrow construction may discourage the robust exercise of the right of association guaranteed by the Bill of Rights," and "(I)t is, therefore, necessary at this stage to encourage the emergence or growth of political parties that will truly reflect the opinions and aspirations of our people. The right of individuals to form associations as guaranteed by the fundamental law, includes the freedom to associate or refrain from association. In accord with this constitutional precept, it is recognized that no man is compelled by law to become a member of a political party, or, after having become such, to remain a member."
7. The question as to whether P.D. 1661 which partook of the nature of an implementing legislation and outlawing guest candidacy as published in the newspapers only on Jan. 5, 1980 after the expiration of the Jan. 4, 1980 deadline for filing of certificates of candidacy, could not be justly relied upon to disqualify candidates who were not aware of its provisions since it had not yet been promulgated much less published as of the time they filed their certificates of candidacy; that the P.D. is unquestionably penal in nature and imposes penalties forviolators and therefore could not be made to retroact without transgressing the ex post facto provisions of the Bill of Rights; and these questions of substantive due process and the application of the constitutional mandate in Art. XII-C, section 9 (1) that "bona fide candidates for any public office shall be free from any form of harassment and discrimination" and the question of real import and meaning of turncoatism such as whether one who after a gap of 9 years of no contested elections runs as an oppositionist as against the overwhelming power and resources of the dominant party or organization can genuinely be denounced as a turncoat following the spirit and not the mere letter of the Constitution and of the law, are issues of great importance and significance that have to be addressed by this Court only after the affected party shall have been given in the first instance a full dress hearing by this Court and resolved only after the fullest deliberations.
- - -
Letter-memo of
May 7, 1980
To my esteemed colleagues:
In connection with our scheduled deliberation tomorrow on dis- qualification cases, particularly the Ticzon vs. Comelec cases involving the mayorality of San Pablo City, where the repudiated candidate Cesar P. Dizon continues (although we are now into the fourth month after the January 30th elections) to sit as mayor due to the Court's failure up to now to enforce its last restraining order of February 15, 1980 against the of Ticzon and proclamation of the repudiated candidate, therefore incumbent mayor Dizon (notwithstanding the candid recommendation of Assistant Solicitor General Vicente Mendoza, who had been assured by Com- elec that they would respect the Court's restraining order), I am submitting the following considerations supplementing my original memorandum of March 25, 1980 which was distributed to you on the same date (and copy whereof is hereto attached for your ready reading/reference). —
1. I submit for your serious consideration the vote which our colleague Justice Antonio 19 left on April 18, 1980 with the Chief Justice as follows:
MEMORANDUM for:
Hon. Enrique M. Fernando
Chief Justice
O f f i c e
Re: The cases of Zacarias A. Ticzon
vs. COMELEC, et at — G.R. Nos.
52451 and 52678
1. I am for setting aside the proclamation of Cesar P. Dizon as Mayor of San Pablo City;
2. I am for the definite resolution of the question of dis- qualification after a full dress hearing in accordance with due process; and
3. Pending the resolution of that question the Vice Mayor who has been elected and proclaimed should act as Mayor.
(Sgd.) FELIX Q. ANTONIO
Associate Justice
2. The very least that should be done is enforce now the Court's last restraining order (and maintain the integrity of the Court's orders and the respect owing thereto) and set aside the proclamation of Dizon since as the repudiated loser, he has no right to claim the mayoralty as an also-ran even though Ticzon may ultimately be declared disqualified.
3. If the Court is to be consistent with its ruling in Pimentel and other cases, Ticzon should in the meantime be duly proclaimed and allowed to assume office as mayor, without prejudice to holding la fun dress hearing' on his alleged disqualification, in accordance with the vote of Justice Abad Santos. (See pp. 3-4, of my March 25th Memorandum.)
4. The question of the disqualification of Ticzon (and of other winning candidates as well) should be threshed out only "after a full dress hearing in accordance with due process," as urged by Justice Antonio in his above vote.
5. Such a full dress hearing is necessary and imperative. In addition to the compelling questions of due process, lack of fair notice and suddenness of the call for the Jan. 30th elections, the equally important constitutional right of free association the ex post facto nature of P.D. 1661 published only after the January 4, 1980 deadline (for filing of certificates of candidacy), it must be borne in mind that the Court has up to now never squarely addressed the question that the KBL became a political party only in late December, 1979 after the calling of the Jan. 30th elections.
Before then by the Court's own pronouncements in the Peralta and Laban cases of 1978, the dominant KBL was not apolitical party but an umbrella organization of all pre-martial law political parties. So, the jockeying of prospective candidates like Assemblyman Amante for a place in the KBL ticket (whom we did not disqualify, unlike Gabatan and Evasco) could not be deemed as opportunism. Neither could their going their own way with the NP as an opposition party (as expressly recognized by the President) be termed as turn-coatism. (Assemblyman Amante, after running as NP candidate is back with the KBL after his defeat.)
6. The Court must have the full big picture before it can disqualify any candidate for alleged turncoatism. (For example, in the face of the KBL having become a political party only in late December, 1979, then Dizon who was elected mayor in 1971 as an NP, should be the one disqualified for tumcoatism for having joined the KBL.) The Court's minute resolutions in the Gabatan and Evasco cases upholding their disqualification on alleged substantial evidence are not precedents, for the facts of the KBL having become a party only in December, 1979 and the many issues of substantive due process and fair play, etc. were never dealt with in those cases.
7. It is only fair and just that the Court remandor turn overall such disqualification cases for a full dress hearing and that the winners be allowed meanwhile to assume their offices. The sovereign will of the electorate cannot be lightly treated or cavalierly disregarded by the Court.
Thank you.
Upon the final voting on the cases last month, I understood that even though Dizon's proclamation would stand, by virtue of the plurality of seven votes in his favor, Ticzon would be reserved the right of protest and the dismissal of Ticzon's petitions would be without prejudice to his pursuing the pending election protest against Dizon (which he had filed ad cautelam with the Comelec in February, 1980, expressly subject to the outcome of the cases at bar), consistently with the Court's reservation in all other cases. The plurality decision's action now upholding Ticzon's disqualification on the bare pronouncement that the Comelec's finding of turncoatism against him "is not a whimsical and capricious finding" and "is binding and conclusive on this Court" (at pages 12-13, decision), has regretably and wrongfully foreclosed totally and shut out any right of protest or vindication on Ticzon's part.
I vote accordingly to grant the petitions at bar, specifically (a) to set aside the proclamation of Dizon; and (b) to set aside the Comelec resolution disqualifying Ticzon and to direct the original canvassing board to forthwith reconvene and complete the canvass and proclaim Ticzon as the winning candidate, so that he may assume his rightful office of mayor of San Pablo City without further delay; and (c) therewith to declare moot the Armedilla petition (G.R. 53393) to declare Dizon disqualified as a turncoat for having changed his political party affiliation during his term of office.
Separate Opinions
TEEHANKEE, J., dissenting:
I dissent from the majority decision dismissing the petition of petitioner Manuel 1. Santos who was duly elected and proclaimed as mayor of the municipality of Taytay, Rizal at the local election of January 30, 1980 with an overwhelming plurality of 4,326 votes against his KBL opponent Ricardo J. Rufino (with a total of 15,463 votes against his opponent's 1 1, 137 votes) and has duly assumed the said office to which he was elected since then to the present, and upholding the questioned Comelec resolution which disqualify him on grounds of alleged turncoatism.
The Comelec's disqualification of the petitioner as an alleged turncoat from the KBL for having returned to the Nacionalista Party to which he had always belonged cannot stand factual nor legal scrutiny. His letter of resignation of January 2. 1980 from the KBL which is reproduced in full in the footnote hereof 1 shows that petitioner resigned from the KBL precisely because it had been converted into a political party separate and distinct from the Nacionalista Party to which petitioner had always belonged and therefore he was disassociating himself from the KBL "prompted by my desire to remain a loyal Nacionalista Party member." Petitioner's action of resigning from the KBL is sanctioned by no less than this Court's own solemn pronouncements in the Laban vs. Comelec case 2 prior to the April 7, 1978 elections that the KBL was but an umbrella organization and that the Nacionalistas as well as those belonging to other parties would be free in the future "to join the party of their choice assuming that the KBL will eventually evolve into a new political party." To quote from Mr. Justice Barredo, the ponente in the said case, "In other words, by nominating as its own the candidates of the KBL, the Nacionalista Party merely gave the mass of its loyal and die-hard party-men the opportunity to vote distinctly as Nacionalistas in the coming election, leaving it for the future, when political matters shall have had more time and opportunity to fully develop and firm themselves up in relation to the modes and objectives of the New Society, for each of them to join the party of their choice, assuming the KBL will eventually evolve into a new political party. Until that time comes, it would be ignoring significant historical realities and practically placing political thought in a straight jacket to recognize the KBL as the exclusive vehicle for the articulation of political ideals."
Due process and a sense of fair play demand that before the verdict of the electorate as well as the President's order as published in the February 27, 1980 newspapers directing the withdrawal of all disqualification charges against the opposition candidates who won in the elections, reserving the right of the defeated KBL candidate to file an election protest, are thus swept aside and disregarded, that a full dress hearing which may only be given an appropriate quo warranto proceeding or election protest should first be had in order to take into account all the vital facts and considerations.
The grounds of my dissent which are fully applicable mutatis mutandis to this case are extensively set forth in my dissenting opinion in the Ticzon disqualification cases 3
involving the mayoralty of San Pablo City which I hereby reproduce by reference and incorporate as part hereof, together with the separate opinion in the said cases of Mr. Justice Vicente Abad Santos, which I have hereto appended marked as Annexes "A" and "B" hereof, respectively.
The majority decision at bar runs counter and cannot be justified in the light of the liberal principles on the issue of turncoatism enunciated by a unanimous Court in the recent case of Romeo S. Gonzales vs. Comelec 4
. Much less can it be reconciled with the decision in Mitmug vs. Comelec (G.R. No. 54082) issued just this month (on March 24, 198 1), wherein the Chief Justice for a unanimous Court again reiterated that such issues are better resolved in an election protest "conclusively once and for all, instead of the parties being caught in the procedural meshes of a pre-proclamation controversy," holding that
... With the canvassing completed, and the proclamation made, private respondent emerging as the victor with right reserved to petitioner to file his corresponding election protest, this case has become moot and academic.
Moreover, this mode of disposing the case is in accordance with the invariable principle followed by this Court given its formulation as to disqualification controversies in Aguinaldo v. Commission on Elections (G.R. No. 53953, January 5, 1981), but likewise applicable to petitions raising questions more appropriately decided in an election protest, the better view as to the proceedings filed with us after January 30, 1980 is to dismiss such petitions without prejudice to having the issues forced upon in the appropriate contests before the proper agency. The time that had elapsed since the election emphasizes the validity and wisdom of such an approach. It is even more appropriate here. An election protest should settle the matter conclusively once and for all instead of the parties being caught in the procedural meshes of a pre-proclamation controversy.
I vote accordingly to grant the petition and to set aside the questioned Comelec resolution.
ANNEX "A" of Justice Teehankee's Dissenting Opinion in G.R. No. 52390 (Manuel L Santos vs. Comelec)
G.R. No. 52451 — ZACARIAS A. TICZON, petitioner vs. COMMISSION ON ELECTIONS, respondent; G.R. No. 52678 — ZACARIAS A. TICZON, petitioner vs. COMMISSION ON ELECTIONS, BOARD OF CANVASSERS OF SAN PABLO CITY and ANTONIO B. COSICO, respondents, CESAR P. DIZON, intervenor; G.R. No. 53393 — RAMON ARMEDILLA, petitioner vs. COMMISSION ON ELECTIONS and CESAR P. DIZON, respondents.
TEEHANKEE, J., dissenting:
1. This is a sorry tale that will go into the record books as the case where three (3) successive restraining orders issued unanimously by the Supreme Court enjoining enforcement of an equal number of successive Comelec resolutions arbitrarily issued ex parte after the elections (1) suspending the canvass of the election returns of San Pablo City (to prevent the proclamation of the winner); (2) replacing the original board of canvassers with a new and more pliant board and transferring the venue of the canvassing to Manila; and (3) disqualifying the winning mayoralty candidate Zacarias A. Ticzon for alleged turncoatism and directing the board to proclaim the loser Cesar P. Dizon "as the remaining winning candidate" 1 have been grossly disregarded and violated by the Comelec, and yet the Supreme Court has dismally failed (by a vote of seven (7) members against to four [4] members for) to enforce its own restraining orders and compel compliance therewith.
2. This case marks the nadir of the Comelec's credibility. Mr. Justice Abad Santos' separate dissent says it all: "This is another instance where the Commission on Elections did not live up to the high expectations of the people and of this Court. The vast powers entrusted to the COMELEC by the Constitution and statutes should have given it a sober sense of responsibility. Instead it has even dealt unfairly with this Court. Add to this its flip-flopping resolutions and we have a constitutional body whose credibility has been seriously eroded. "
3. Before, the loser's tactic was to "grab the proclamation at all costs and prolong the protest." Now, the Comelec has refused to even count the votes of the winner (in gross violation of the Court's standing February 5, 1980 restraining order) and enabled the loser to grab not only the proclamation, but the election as well with not even a right of protest by the winner. The Comelec did this by an arbitrary post-election disqualification of the winner as a "turncoat" from the Liberal Party (which had boycotted the elections as well as the previous 1978 elections and was considered by the Comelec itself as "inexistent") to Nacionalista Party and ordering the proclamation of the loser as "the remaining winning candidate" with "no opponent. " There might as well have been no elections. In the words of the late Chief Justice Fred Ruiz Castro, the loser "continues to fraudulently represent the people who had in law and in fact duly elected someone else to represent them." 2 Furthermore, the prevailing doctrine since the 1912 case of Topacio vs. Paredes 3
that the repudiated loser who succeeds in disqualifying the winner is not entitled to be proclaimed, much less to assume office, since he has not received the majority of the votes cast in the elections as well as the sovereign will of the San Pablo electorate have simply been disregarded and swept aside without even a passing nod
4. As early as one day after the elections on January 31, 1980, Dizon already exhibited the loser's perennial tantrums and filed his petition with the Comelec "for suspension of the canvass and proclamation or for nullification of the election with the usual cries of "disenfranchisement and widespread vote-buying" notwithstanding the vast powers at his disposal as incumbent KBL mayor and the utter lack of any authentic election day reports of such alleged irregularities which the Comelec certainly would have attended to, considering the alacrity with which the Comelec accommodated his every petition after the elections to thwart the winner as this case shows. (See decision at pages 5-6). The Comelec without the notice and hearing required by Section 175 of the 1978 Election Code forthwith accommodated him in its peremptory order of February 1, 1980 directing that "no canvass or proclamation shall be undertaken until further orders" which the Court set aside in its February 5, 1980 restraining order ordering the board to proceed with and terminate the canvassing — futilely as it turned out now. For where other agencies and subordinate courts generally refrain, as matter of deference, from taking any action on questions pending with this Court even where no restraining order is issued by this Court, here in gross disregard of the two restraining orders of February 5 and 14, 1980 and still the third restraining order that was issued right after the Court's hearing of February 15, 1980, as well as of the Solicitor General's assurance given solemnly on its behalf, the Comelec raced to beat the force and effects of the said orders, and has gotten away with it, as wen as beaten the contempt charges filed against it and the canvassing board which the plurality decision has just ignored.
5. At the same time, the Comelec whimsically refused to disqualify the loser Dizon on the Armedilla petition for "petitioner's failure to present sufficient evidence," when Dizon (who was elected mayor as the official Nacionalista Party candidate in the 1967 and 1971 elections but in the last 1980 elections turned coat and ran as official KBL candidate) was patently guilty of turncoatism for changing his political party affiliation during his term of office against the express prohibition of Article XII C, Section 10 of the 1973 Constitution. 4
The plurality's decision has disregarded their pledge during our deliberations of applying the same measure of "turncoatism" to Dizon and necessarily also disqualifying him.
6 . What is worse, Comelec's abrupt disqualification of the winner Ticzon was against the President's own post-election order to "the lawyers of the KBL to withdraw all disqualification charges to allow already proclaimed opposition candidates involved in such cases to assure office without prejudice to filing an election protest." 5 Questioned about such order, Dizon's counsel replied that the order was just a newspaper order and they did not receive it.
7. The core issue at bar is the validity and fairness of the Comelec's Post-election disqualification of Ticzon as a turncoat for having run as an oppositionist. Liberal in 1917 and nine years later as an oppositionist Nacionalista in 1980 against the dominant KBL candidate, Dizon, who had been elected in both the 1967 and 1971 elections as the then dominant Nacionalista official candidate.
(a) The said disqualification of Ticzon should be dismissed outright by this Court for lack of substantial evidence (see my Memorandum to the Court of March 25, 1980, reproduced hereunder, at pages 4-5). In Potencion vs. Comelec 6 involving the governorship of the Province of Aurora, the Comelec, as sustained in the comment filed by the Solicitor General on its behalf, "dismissed the disqualification case against respondent for switching from Liberal Party (under which he was elected) to the KBL on the ground that 'the Liberal Party may be deemed to have become inexistent as it did not nominate candidates both in the elections of 1978 and 1980. But the Comelec inconsistently flip-flopped here and did not equally apply this reasoning and ruled in the case of the winner Ticzon who became partyless and switched from the "inexistent" Liberal Party not to the dominant KBL (as the loser Dizon did, switching from the former majority Nacionalista Party under which he was elected) but to the opposition Nacionalista Party under which he was elected) but to the opposition Nacionalista Party. This action of the Comelec violates the very spirit of the cited constitutional prohibition against turncoatism, which is to curtail opportunism and desertion of the opposition ranks;
(b) The Comelec's disqualification of Ticzon likewise denied him "the rudimentary requirements of fairplay [which] demand that [he] be afforded ample opportunity to prove" his defenses against the charge of turncoatism — to borrow the very phrase of Mr. Justice Ramon C. Aquino for a unanimous Court in Gonzales vs. Comelec. 7 In setting aside therein the Comelec disqualification of the winner of the election for the mayoralty of Polangui, Albay, and the proclamation of the loser (because the winner's votes were considered as stray votes and not counted, as in Ticzon's case here), Mr. Justice Aquino pointed out that he was denied procedural due process: "(T)he Comelec disqualified Gonzales without hearing his evidence. It denied his motion for reconsideration in a somewhat high-handed or cavalier manner. It did not bother to resolve the factual issues raised in the affidavits supporting his motion for reconsideration. There is no finding as to when the KBL became a duly accredited political party. Moreover, the release of the disqualification resolution on the eve of the election was quite unfair and disconcerning to Gonzales," — which considerations are fully applicable to the present case; and worse, Ticzon was disqualified 16 days after the election and on the eve of his proclamation!
(c) The Comelec's post-election, disqualification of the winner Ticzon offends all notions of fair play and equal protection as well as of substantive due process and transgresses the constitutional injunction that all "bona fide candidates shall be free from any form of harassment and discrimination. 8 Here, Ticzon's case, like that of Antonio O. Singco the opposition winner of the last mayoralty election for Ginatilan Cebu (whose arbitrary post-election disqualification on February 26, 1980 by the Comelec was set aside by a unanimous Court in Singco vs Comelec 9, was arbitrarily, whimsically and discriminatorily plucked by the Comelec from hundreds of pending disqualification cases in order to select the losers as the winners with "no opponent by disqualifying the elected winners and not counting their votes as "stray votes"; and
(d) In Arcenas vs. Comelec 10 the Chief Justice, speaking for a unanimous Court, essayed to write finish to all such pliding disqualification cases still being utilized to harass the winners and clear the Court's dockets by restating that "It is now the prevailing doctrine that after an election duly held and a proclamation [of the winner] thereafter made, a preproclamation controversy should no longer be viable" and "resort [must] be had to the remedy of an election protest or a quo warranto, whichever is proper." This doctrine has been affirmed and reaffirmed in all subsequent cases, the latest being Agcaoili vs. Santos and Comelec. 11 In this latest case, the Court thru the Chief Justice once again reiterated election day January 30, 1980, as the cut-off date and that disqualification cases which had not been acted upon prior to date by the Comelec "should be dismissed without prejudice to such ground being passed upon in a proper election protest or quo warranto proceeding." Inexplicably, this settled doctrine has not been applied to the present case of Ticzon who should have long been proclaimed the winner (since January 31st and at the latest in February of last year pursuant to the Court's three restraining orders) and assumed his rightful office pursuant to the electorate's verdict.
8. In Esquivel vs. Comelec, 12 a plurality of six members of the Court sanctioned the Comelec's belated unseated of petitioner as mayor of Palayan City despite the lapse of almost two months since his assumption of office, on the ground that the canvassing board which proclaimed him was "illegally constituted" and "as such its acts are patent nullities without force and effect in law" because its chairman, the election registrar, was not a lawyer as directed by section 11 of B.P. Blg. 52, although said board was constituted according to the Comelec's own guidelines, which imposed no such requirement. Then all the more so, should the unjustifiable act of the new canvassing board of proclaiming Dizon as the "remaining winning candidate" with "no opponent" be deemed a "patent nullity without force and effect in law" by virtue of the Court's restraining orders of February 14 and 15, 1980 enjoining enforcement of the Comelec orders replacing the original board and ordering Dizon's "proclamation."
9. The plurality decision's assertion (at page 8) that "this Court's second restraining order of February 14, enjoining the canvass by the newly constituted board of canvassers, was useless. It was useless because of the Comelec's prior resolution of February 12, disqualifying Ticzon and ordering the proclamation of Dizon. By reason of Ticzon's disqualification, there was no need to canvass or determine the votes for him as tallied in the election returns," 13 is untenable, because:—
— The Court's first restraining order of February 5th directed the canvassing board to disregard the Comelec's suspension of the canvass and "to proceed with the canvassing" and count, of course, the votes of both Ticzon and Dizon, and the board acknowledged the same and pledged compliance therewith in its February 7th telegram;
— This triggered the Comelec's arbitrary order replacing the original board and transferring the venue to Manila, which was also enjoined by the Court's second restraining order of February 14th; and hence, the new board was "illegally con stituted and its acts were "patent nullities" - in the language of Esquivel supra.
— This Court's second restraining order of February 14th can hardly be down graded as "useless ". Ticzon's 11 th hour disqualification by the Comelec resolution dated February 12, 1980 but released only on February 14, 1980 when the canvassing showed Ticzon with an insurmountable margin of 2,994 votes with only 62 more precincts to be tallied was another i patent nullity" in gross violation of the Court's first restraining order, which ordered that the board and Comelec canvass Ticzon's votes, as well as of the Court's third restraining order of February 15th which expressly enjoined enforcement of the Comelec's 1 1th hour disqualification of Ticzon;
— As admitted in the plurality decision, (at pages 7 and 8), the Court's second restraining order restraining the canvass in Manila by the newboard "was [timely] served in (sic) the Comelec at ten o'clock in the morning of February 15, 1980 when the recanvass was about to be terminated." The excuse that it took up to 4:30 p. m. that day for the Comelec records section to send a copy of the restraining order to its Law Department, which in turn took more than 24 hours until 5:30 p.m. of the next day, February 16, to forward a copy to the Comelec chairman, whereas Dizon had been proclaimed at past 6:00 p.m. of the preceding day, February 15, is of no consequence, prescinding from the outrageous incredibility of the excuse;
— For on that very afternoon of February 15th the Court was hearing Ticzon's urgent petition for a restraining order against his 11th hour disqualification (which he learned of only on the preceding day) and then Assistant Solicitor General, now Court of Appeals Justice, Vicente V. Mendoza in representation of the Comelec solemnly manifested in open court that he was assured by the Comelec chairman and officials that pending the Court's action on the petition before it, they would not implement the questioned Comelec order to proclaim Dizon as the only remaining candidate. Assistant Solicitor General Mendoza was so visibly shocked when it turned out that as he gave Es assurance at the hearing, the new board was at that very hour rushing its proclamation of Dizon, that at the subsequent hearing of February 26, 1980 to set aside Dizon's proclamation and to hold the Comelec in contempt, he candidly stated to the Court that on his own, he was recommending to the Comelec and to this Court the setting aside of Dizon's proclamation. Callous proof of the Comelec's forfeiture of "a sober sense of responsibility" is its obdurate failure to heed its own counsel's recommendation and set aside Dizon's railroaded "proclamation" against its chairman's plighted word.
— No matter. Prescinding from the nullity of said proclamation and the brazenly oppressive and arbitrary action of the Comelec, it lies within the inherent power of tile Court to enforce its restraining order against the parties who were racing to beat the order and to set aside the "proclamation" and restore the status quo, as this Court has done in many such other cases.
10. The plurality decision's pronouncements to the effect that the Comelec's findings are sacrosanct and that "there is no justification for this Court to interfere with the actions taken by the Comelec" (at page 11, et seq. are an untenable abdication of the Court's constitutional power and duty of review over the Comelec 14 and have no justification in law and in fact.
In law: Ironically, the cited case of Vinzons 14-a manifests the Court's reluctance to disturb the Comelec's rulings "on facts and matters of equity ... to assure the sanctity of the ballot, exercised freely by the voters as "particles of sovereignty" — but has no application when the Comelec serves as the very instrument of oppression to thwart the people's will and impose on them the repudiated loser as the "remaining winning candidate" with "no opponent". When the Comelec makes the baseless finding in its disqualification resolution that "the records do not disclose that [Ticzon] resigned his membership from the said Liberal Party. Neither was he expelled from his party On the contrary, the affidavit of Ex-Vice Mayor Pedro Magcase shows 'that Ticzon remained with the Liberal Party.' All other documentary evidences on record indicate his continuance as member in good standing of the liberal Party," (at page 12, decision). such baseless finding cannot be "binding and conclusive on this Court," as asserted by the plurality decision (at page 13). Contrary to the Comelec's incorrect statement, the documentary evidence of record amply shows that both former Congressman Manuel Concordia as LP chairman for the Laguna first congressional district and LP president Gerardo Roxas had submitted sworn statements that Ticzon had been expelled from the Liberal Party for having run as a rebel Liberal candidate in the 1971 elections (resulting in the victory of the Nacionalista Party candidate Dizon, now KBL, and the defeat of the disgruntled official Liberal Party candidate, ex-vice mayor Pedro MagCase upon whose barren affidavit the Comelec solely relied for its "finding" that "Ticzon remained with the Liberal Party" which the Comelec itself had held to be now "inexistent" since it had not participated in the 1978 and 1980 elections. So how could Ticzon be a turncoat from an "inexistent" Liberal Party?) The plurality decision itself does not even mention these vital documents that reveal the baselessness of the Comelec's "finding" which it pronounces as "binding and conclusive.
In Fact: As Mr. Justice Abad Santos justly observed in his dissent in Omar vs. Comelec," 15 (T)he proposition that this Court should sparingly use its power of review over the COMELEC because it is an independent constitutional body is correct by this is one case where we should firmly exercise our power because of the flip- flopping resolutions of the Comelec." These "flip-flopping" resolutions have had to be "interfered with" and stricken down by this Court in a far greater number of decisions of this Court than at any other time, as listed in the footnote. 16 None of these cases approximates the brazenly oppressive and arbitrary actions of the Comelec in this case.
11. I have always maintained that all pre-election cases seeking to disqualify the winner simply on the ground of alleged turncoatism should be ordered dismissed after the last January 30th elections, subject to the filing of an appropriate quo warranto action or election protest against the winner in the appropriate forum.
The people's will and undeniable right to have officials of their unfettered choice will thus be respected pending the final outcome of such protest, which depends upon so many factual and other relevant considerations as set forth hereinbelow. (See memoranda reproduced hereunder)
In Venezuela vs. Comelec 17 (where the Court upheld the Comelec's action in refusing to disqualify the mayor-elect of Pozorrubio for turncoatism, for having switched like Dizon from the then majority NP under which he was elected in 1971 to the now dominant KBL), I pointed out in my separate concurrence that "Respondent Comelec in its Comment of May 8, 1980 filed by Solicitor General Estelito P. Mendoza takes the position that '(I)t is worth noting that the people of Pozorrubio, Pangasinan have spoken and their choice to be their mayor is the private respondent. The will of the electorate of Pozorrubio, Pangasinan should be respected. In Cancerian v. Comelec, 107 Phil. 607, this Honorable Court held that the courts must give the voice of the electorate efficacy and not stifle or frustrate it. Also of particular relevance is the ruling of this Honorable Court in Lino Luna vs. Rodriguez, 29 Phil. 208, and De Guzman vs. Board of Canvassers, 48 Phil. 211:
It has been announced in many decisions that the rules and regulations for the conduct of elections are mandatory before the election, but when it is sought to enforce them after the election, they are held to be directory only, if that is possible especially where, if they are held to be mandatory, innocent voters will be deprived of their votes without any fault on their part. The various and numerous provisions of the Elections Law were adopted to assist the voters in their participation in the affairs of government and not to defeat that object.
I concluded therein that "(I)t is to be devoutly wished that the Comelec apply equally and consistently this salutary position in all pending pre-proclamation cases (many of which are still pending in this Court involving on the whole opposition party winners sought to be disqualified)."
12. The public interest demands the prompt proclamation and assumption of office by the true and rightful winner of the election and he and the sovereign will of the electorate may be thwarted if at all — not in administrative and summary preproclamation proceedings of the Comelec — but only after a full-dress hearing in accordance with due process wherein the parties are afforded full opportunity to present all evidence relevant to the issue of disqualification of the winner because of alleged turncoatism and the verdict of the Comelec (for provincial and city officials) or of the CFI (for municipal officials) shall have passed the final action of this Court. Pending such final action, the losing candidate repudiated by the people (who would not be entitled to proclamation even if the winner were to be disqualified for turncoatism, since he has not received the required plurality of the votes cast in the election) should not offend the sovereign will of the people who rejected him by assuming office (as an aftermath of the comelecs arbitrary disqualification of the winner) as the "remaining winning candidate" with "no opponent."
13. When one takes into account an the relevant issues on "turncoatism" (see memoranda, infra, at pp. 20-26 hereof) and considers that by this Court's own pronouncements in the Peralta and Laban cases of 1978 that the KBL until the sudden calling of the January 30, 1980 local elections (the first ever to be held) was but an umbrella organization of all pre-martial law political parties whose activities were all suspended during martial law, the "turncoatism" provision should in all fairness be declared inoperative for the said 1980 elections in the same manner that it was declared inoperative in the 1978 elections, for it would have thereby disqualified all KBL candidates in the said elections as turncoats for switching to the dominant KBL.
14. In the course of the long pendency of these cases before the Court, I submitted two memoranda of March 25, and May 7, 1980 to the Court on the antecedents and issues of the cases at bar which because of time constraints I can no longer rewrite and therefore reproduce verbatim 18 hereinbelow, in amplification of the foregoing considerations for my dissent which were focused on the plurality decision's rationale.
Memorandum on the overriding and compelling considerations for enforcing the Court's restraining orders of February 5, 1980, February 14, 1980 and February 15, 1980 and upholding the Supreme Court's dignity and the force and effect of its orders and processes in the Ticzon vs. Comelec cases, G. R. Nos. 52451 and 52678. (March 25, 1980)
I. Antecedents. — Before, the loser's slogan was to "grab the proclamation and prolong the protest." Now, the loser with the active support of the Comelec, would not even count the votes of the winner but would grab the proclamation and the election by a post- election disqualification of the winner. One would be hard put to find a series of brazenly oppressive and arbitrary actions on the part of the Comelec in pursuing such an unworthy purpose and nullifying the win of the electorate.
The petitioner, Zacarias A. Ticzon, came timely to this Court four (4) times for relief from the oppressive and arbitrary orders of the Comelec and three (3) times this Court issued separate restraining orders to stop the Comelec, which orders were nevertheless frustrated and disregarded by the Comelec as may be seen from the following summary.
1. On February 1, 1980, the Comelec Chairman without any given reason issued a directive to the provincial election officer of Laguna "to stop the canvassing of the votes for city positions from Mayor, Vice-Mayor and Members of Sangguniang Panglungsod in the City of San Pablo and that rio canvass or proclamation shall be undertaken until further orders from his Commission." Upon petition of petitioner Ticzon who attached thereto the quick-count certificate based on the duplicate originals of election returns of San Pablo City as submitted by the chairman of the Citizens' Election Committee showing that Ticzon had won the mayoralty by a majority of 2,204 votes together with his entire Nacionalista ticket, the Court issued its restraining order of February 5, 1980 restraining the Comelec from enforcing the said directive insofar as it suspended the canvassing" and "directing the City Board of Canvassers to proceed with the canvassing of the election returns."
2. While the City Board of Canvassers in a telegram dated February 7, 1980 informed this Court that it would comply with said restraining order, petitioner filed an urgent motion on February 8, 1980 complaining that the Comelec without any explanation changed the original composition of the Board of Canvassers and designated in their stead three (3) lawyers who arrived at San Pablo City to comply with still another directive of the Comelec to bring the election returns and other records to Manila for the canvassing notwithstanding that no untoward incident had been reported nor any anomaly recorded during the canvassing by the original Board of Canvassers that was peremptorily suspended by the Comelec. The Court issued its restraining order of February 14, 1980 enjoining the Comelec from enforcing its directly that the canvassing of The election returns be conducted by a new Board of Canvassers in Manila at the Comelec's Election and Barangay Affairs Department (instead of by the City Board of Canvassers in San Pablo City). the second restraining order of the Court was issued too late, six (6) days after the filing of the urgent motion to stop the returns from being transferred to Manila. The new Board of Canvassers escorted by heavily armed troopers had lost no time in taking possession of the ballot boxes and transporting them in a closed van to which the assigned NP representative was denied access.
3. On February 15, 1980, Ticzon had to file a still more urgent petition complaining that on the preceding day, February 14, 1980, while the new Board of Canvassers was still in the process of canvassing results from 213 voting centers out of a total of 275 which had been already tallied showing that Ticzon was leading his opponent Cezar P. Dizon (the incumbent KBL mayor) by an insurmountable margin of 2,994 votes (22,871 votes for Ticzon and 19,877 votes for Dizon) with only 62 election returns not yet canvassed which could not affect the result, the Comelec released its resolution dated February 12, 1980 granting a voter's petition for the disqualification of Ticzon for alleged turncoatism (while at the same time leaning unresolved another voter's petition for the disqualification of Dizon who had been elected as mayor as a Nacionalista in 1971 and changed his political affiliation to KBL on January 3, 1980) and resolved "not to give due course to the Certificate of Candidacy of respondent Zacarias Africa Ticzon, who is hereby ordered as disqualified, and hereby orders the City Board of Canvassers of the city of San Pablo to consider all votes cast in favor of respondent Ticzon as stray votes; and, consequently, orders the City Board of Canvassers of San Pablo City to proclaim the remaining winning candidate for the position of Mayor of San Pablo City, Laguna."
The Court held a hearing on the case in the afternoon of February 15, 1980 and Assistant Solicitor General Vicente V. Mendoza who represented the Comelec formally manifested in open court that he was given assurance by the Comelec officials that they would not implement the questioned resolution (No. 985) pending the Court's action on Ticzons petition. After the hearing, the Court did issue its restraining order of February 15, 1980 restraining the Comelec "from implementing the questioned resolution 'not to give due course to the certificate of candidacy of respondent Zacarias Africa Ticzon' (Annex K of the Petition), the City Board of Canvassers thus being enjoined from proclaiming the only other candidate for City Mayor of San Pablo City, the canvassing of the election returns to continue with the votes of both candidates counted "
4. But Ticzon's travails were still far from over. His complete votes which did show him to be the clear and uncontested winner of the elections remained uncounted and uncanvassed notwithstanding this Court's direct orders of February 6 and February 14, 1980 to the Comelec and to the Board of Canvassers to do so. Worse, late on that very same afternoon of February 15, 1980, the new Board of Canvassers, in gross disregard and defiance of this Court's restraining order of February 14, 1980 enjoining the enforcement of the Comelec "directive that the canvass of the election returns be conducted by a new Board of Canvassers in Manila," on the pretext that it had not been advised of the Comelec's commitment that it would not implement its questioned resolution disqualifying Ticzon and directing the canvassing board to proclaim the loser and repudiated candidate Dizon as "the remaining winning candidate" (notwithstanding that it was in the very premises of the Comelec in Manila), nevertheless issued its certificate of canvass and proclamation proclaiming "Cezar P. Dizon (no opponent)" as having received the plurality of the votes legally cast for the office of mayor, after discarding all the notes of Ticzon as stray notes. (In the same proclamation certificate, the entire Nacionalista ticket, carried by Ticzon was perforce proclaimed.) Once again for the fourth time, Ticzon appealed to this Court for relief through his urgent petition and contempt petition, both dated February 18, 1980, and his urgent motion of February 22, 1980 and urgent petition of March 1, 1980, all asking the Court to maintain the status quo and as prayed for in the urgent petition of February 18, 1980 to set aside the proclamation of Dizon if he would have already been proclaimed by the Board of Canvassers as of the time of the issuance of this Court's restraining order of February 15, 1980 after the hearing on that day as originally prayed for by Ticzon both in his petition of February 15, 1980 and at the said hearing.
Ticzon's urgent petitions of February 18 and 22, 1980 were set for hearing and heard by us in the afternoon of February 26. At the hearing, Assistant Solicitor General Mendoza was frank enough to state oil his own that he recommended to the Comelec and to this Court the setting aside of the proclamation of Dizon and that upon proper petition all the NP's or Liberals who turned KBL at the last elections should also be disqualified on the charge of turncoatism. At the end of the hearing, there was a clear consensus to apply the same formula applied in the Pimental case of Cagayan de Oro City, i.e., annul the proclamation of Dizon and complete the canvassing and proclaim the winning candidate (Ticzon) and remand the case of disqualification to the Comelec for a full-dress hearing thereon with the winning candidate Ticzon being proclaimed and allowed to assume office if the question of his disqualification has not been resolved by the Comelec on March 3 (the date set by law for assumption of office). The issuance of the formal resolution to this effect, however, was deferred to February 28, 1980 in deference to some absent members and has since bogged down and been left, unresolved up to now. Justice Vicente A bad Santos who was scheduled to leave on February 28, 1980 in fact left his written note of February 27 with the Chief Justice stating the following:
I have to refer to the cases of Zacarias A. Ticzon vs. COMELEC, et al. (G.R. Nos 52451 and 52678). Since I will be abroad in the service of our country, I beg leave to set forth my position in respect of several issues, namely:
1. I am for setting aside the proclamation of Cesar P. Dizon as Mayor of San Pablo City.
2. I am for the continuance of the canvass of all election returns for the office of Mayor of San Pablo City, In the canvass the votes cast in favor of Zacarias A. Ticzon should be counted and should not be considered as stray votes
3. If Ticzon turns out to have the plurality of votes and the question of his disqualification is not resolved by The COMELEC in a full dress hearing before March 3. 1980, he should be proclaimed as the duly elected Mayor of San Pablo City and allowed to assume office.
4. The proclamation and assumption of office by Ticzon will be prejudice to any appropriate proceeding against him. "My position in the Ticzon case applies to all other similar cases pending before us, and I request that you certify my vote therein accordingly.
Even if we were to apply solely the criterion of substantial evidence, I hold that Ticzon is entitled to an outright dismissal by this Court of the disqualification case against him. The Comelec in its belated resolution of disqualification of February 12, 1980 disqualified Ticzon on the following rationale:
... It appears from the pleadings and exhibits that on December 28, 1979 respondent filed his certificate of candidacy as an Independent (Exhibit "B"). That on December 31, 1979, he withdrew his Certificate of Candidacy (Exhibit "C") and on January 7, 1980, he filed his second certificate of candidacy as a member of the Nacionalista Party (Exhibit "D"). It appears, however, that on November 8, 1971, he filed his certificate of candidacy for Mayor in San Pablo City, as a member of the Liberal Party (Exhibit "A"). The records do not disclose that he resigned his membership from the said Liberal Party. Neither was he expelled from his party. On the contrary the affidavit of Ex-Vice Mayor Pedro MagCase shows respondent remained with the Liberal Party. All other documentary evidence on record indicate his continuance as member of good standing of the Liberal Party.
But the Comelec's statement was far from fair nor complete. It failed to mention the evidence of record that Ticzon had run as a rebel Liberal candidate in 1971 for the same office of mayor by virtue of which he was expelled from the Liberal Party as attested in a verified statement of former Congressman Manuel Concordia then Liberal Party district chairman for the Laguna first congressional district and in the sworn certificate of Sem Gerardo Roxas, president of the Liberal Party, confirming such expulsion It failed to mention further that it had failed to act on the pending petition for disqualification against Dizon for being an NP turncoat who changed his party affiliation to KBL only upon filing of his certificate of candidacy on January 3, 1980. The Solicitor General's answer to the petition assailing the questioned disqualification resolution is a bit more candid, as follows:
... Even if, as argued, Comelec should not have relied on this evidence alone but should, likewise, consider the affidavit of Manuel Concordia, the contents of which are certified to by Gerardo Roxas, the result would substantially be the same. The two affidavits would merely offset and neutralize each other which would leave the following undisputed facts: that petitioner was a Liberal in 1971 and that on January 7, 1980 he filed his certificate of candidacy as a Nacionalista candidate.
The undisputed facts that remain after mutual neutralizing or offsetting of the contradictory affidavits as stated by the Solicitor General should be that Ticzon was a Liberal in 1971 and that on January 7, 1980 or 9 years later he filed his certificate of candidacy as a Nacionalista candidate after having filed an earlier certificate of candidacy as an independent. This bare evidence certainly cannot constitute in any language substantial evidence that would warrant his disqualification for turncoatism. On the contrary, it amply shows that he had long left his party affiliation of a Liberal which incidentally was not taking part in the elections since it had boycotted the same as well as the 1978 Interim Batasang Pambansa elections.
Finally, the possible argument that may be raised that these proceedings have become moot since Dizon has already been proclaimed and assumed office is of no consequence. We have already issued a good number of restraining orders setting aside stich assumption of office pending our determination of the cases before us as in the cases of Renato Reyes, Yason et al This is but in accordance with settled precedents such as the resolution that we issued on December 10, 1973 in L- 37384, Villegas us. Salvador, wherein "upon motion of petitioner, the Court RESOLVED to clarify the writ of preliminary injunction issued on October 19, 1973, enjoining the respondent judge from enforcing his decision dated June 15, 1973 in Civil Case No. C-2261 and private respondent Domingo de Jesusfrom continuing further in exercising the office as councilor of Malabon, Rizal, to the effect that said writ of preliminary in- junction affirms the right of and authorizes petitioner Vinegas to assume and exercise the office of councilor of Malabon, Rizal, until further orders, pursuant to Section 218 of Republic Act No. 6388, otherwise known as the Election Code of 1971. " The Court's authority to uphold its restraining orders or in- junctions so as to restore matters to the status quo in cases where the adverse party has beaten the injunction or restraining order has consistently been affirmed by us as in Banzon vs. Cruz (45 SCRA 506), where we reaffirmed that "the Court does not look with favor upon parties 'racing to beat an injunction or restraining order' which they have reason to believe might be forthcoming from the Court by virtue of the filing and pendency of the appropriate petition therefor. Where the restraining order or preliminary injunction are found to have been properly issued, as in the case at bar, mandatory writs shall be issued by the Court to restore matters to the status quo ante. "
II. Disqualification cases. — All such pre-election cases seeking to disqualify the winner on the ground of turncoatism should be dismissed subject to the filing of an appropriate quo warranto action or election protest against the winner in the appropriate forum. I believe that this is the only practical course for the Court to follow (as indicated by Justice Vicente Abad Santos in his vote) if we are to get on with the Court's business in the other equally important cases that confront us and if we are to remove the spectacle where two months after the elections of January 30th the real winners in some localities are still unproclaimed or have not yet assumed office. The President seems to share this view, having been reported in the February 27, 1980 newspapers to have "ordered the lawyers of the KBL to withdraw all disqualification charges to allow already proclaimed opposition candidates involved in such cases to assume office. Even with the withdrawal of these cases, the KBL lawyers can still reserve the right to file an election protesta the President said. The President noted the numerous disqualification cases filed by the KBL against some winning opposition candidates. " This position is basedon a good number of compelling considerations which we may in the main briefly summarize, as follows:
1. The people's will and undeniable right to have officials of their unfettered choice should be respected in the meantime and innocent voters should not be deprived of their votes without any fault on their part What I said in the Pimentel case applies to all other cases mutatis mutandis, as follows:
As the Court has consistently held in an unbroken line of cases, 'after the termination of the election, public interest must be made to prevail over that of the defeated candidate'(De Guzman vs. Board of Canvassers, 48 Phil 211 [1925], citing Lino Luna vs. Rodriguez, 39 Phil. 208 [19181. As stressed by the now Chief Justice in Badelles vs. Cabili (27 SCRA 121 [1969], it is [the people's] undeniable right to have officials of their unfettered choice.' Thus, we have invariably held that the will of the electorate should ever be respected, not defeated or frustrated by materials defects in the winning candidate's certificate of candidacy (including one not being a registered elector in the very municipality where he was nevertheless elected president of Meycauayan, Yra vs. Abaño, 52 Phil. 380 [1928], which while mandatory before the elections (and would therefore render null and void the certificate of candidacy) were held to be directory only after the election, as otherwise 'innocent voters will be deprived of their votes without any fault on their part.' (Lino Luna, supra; also Canceran vs. Comelec, 107 Phil 607 [1960], Corocoro vs. Bascara, 9 SCRA 522 [1963], Pungutan vs. Abubakar, 43 SCRA 11 [19721; and Lacson, Jr. vs. Posadas, 72 SCRA 170 [1976]).
Consistently with the above-cited jurisprudence, and with the Court's now setting aside the Comelec summary resolution of January 28, 1980 disqualifying Pimentel by not giving due course to his certificate of candidacy for alleged tumcoatism (when he has always been Identified with the oppositionist cause and has now been elected as such but which was restrained in our Order of January 29, 1980, the summary case in the Comelec has now become functus oficio, with the electorate having been allowed to express their sovereign will and clear choice of Pimentel at the elections (instead of what would have been a non-election where the elects-ate could not even vote yes or no for his defeated opponent who would have been the remaining unopposed candidate). Now that Pimentel has been overwhelmingly elected, the only course left is to file an election contest under section 189 of the 1978 Election Code.
2. Equally important under the prevailing doctrine of Topacio vs. Paredes (23 Phil 238), the repudiated candidate and loser in the election who succeeds in disqualifying the winner is not entitled to be proclaimed much less to assume office, since he has not received the plurality of the votes cast in the elections. If during the pendency of an action for disqualification, no one qualifies for the questioned position (of mayor in the Ticzon case), under the law it is the duly proclaimed and elected vice mayor who assumes the contested office (section 8, Batas Pambansa Blg. 51).
3. The winning candidate especially after he has received the approbation of the electorate is entitled to due process and a full-dress hearing so that the circumstances relied upon to sustain the charge of alleged turncoatism may be duly threshed out with confrontation and examination of witnesses and his good faith or bad faith, as the case may be, may be duly determined. Ticzon also has ground to complain as he has in his urgent motion of March 1, 1980 where unlike other candidates in the same situation as his facing charges of disqualification for turcoatism such as Pimentel of Cagayan de Oro City and Nepomuceno in Sta. Rosa, Laguna, these candidates notwithstanding their prenious disqualification by the Comelec were nevertheless proclaimed as winning candidates by order of the Comelec itself.
4. There are a number of vital facts that have to be established and duly taken into consideration in a full-dress hearing, among them the lack of fair notice and suddenness with which the January 30th elections were called when as late as November 16 and November 21, 1979 it was being reported by the newspapers that local elections have been set for December 7, 1980,(1) with the President leaving been reported on November 22, 1979 as notifying the Comelec that "local elections will be held either before the end of next year 1980 or in early 1981(2) until suddenly on December 16, 1979 it was reported that the President asked the Batasang Pambansa toset the local elections for January 30th which was so fixed by the Batasang Pambansa. On January 4, 1980, the deadline for filing of certificates of candidacy, "the President was reported to 'uphold NP's right to field candidates' stating that 'the policy should be to allow fair, free and open right among the aspirants from the gubernatorial to the sanggunian position' and that 'it is obvious, the President told newsmen, that in most places, the fight will be between the KBL and the NP. 'That would make the NP the opposition in the coming elections,' the President continued." (3)
It is important that all the circumstances and facts be duly brought out because even in the cases of those who were seeking an official nomination and affiliation as KBL candidates in the light of the undisputed situation that during this entire period of martial law — going into the 8th year now — the activities of political parties had been suspended and there was only one dominant organization serving as an umbrella organization which is the KBL which admittedly was organized as a political party only in December 1979 after the calling of the elections and that all local officials held office at the pleasure of the President and were exhorted to support the KBL organization and could be removed even before the elections as in fact a number of them were so removed as in the case of the Mandaluyong mayor.
The question of fairness and equal protection of the laws also comes into serious consideration when we take the case of Assemblyman Edelmiro Amante whose contention before this Court was that he has always been a Nacionalista and his disqualification by the Comelec from running for the office of governor of his home province of Agusan del Sur on the ground that he had been elected as a KBL assemblyman was set aside by this Court and yet after the elections he and a number of others who supported or ran as Nacionalista candidates had been accepted back into the KBL ranks in the Batasan Pambansa.
5. Some of the KBL candidates with pending cases of disqualification against them invoke P.D. 1667 decreed onJanuary 26, 1980 amending section 1 of P.D. 1661 by inserting the proviso "that a person who participated as an officer in the campaign of a political party, group or aggrupation in the immediately preceding elections shall be deemed a member of such party as of the date of the political campaign for purposes of nomination as official candidate of such party in succeeding elections." The Comelec in the cases resolved by it in favor of the KBL candidates has simply dismissed the petitions of turncoatism "for lack of sufficient basis" without invoking P.D. 1667. Indeed, this P.D. has been assailed for having been tailored to rescue the KBL candidates from the clear charges of turncoatism against them and for denying equal protection of the laws and for violating the cited constitutional injunction that all "bona fide candidates shall be free from any form of harassment and discrimination. "
6. The cited prohibition against change of political party affiliation must be so construed so as not to collide with the right guaranteed by the Constitution such as the right of free association As stated by the Court itself in the Peralta case, "a narrow construction may discourage the robust exercise of the right of association guaranteed by the Bill of Rights," and "(I)t is, therefore, necessary at this stage to encourage the emergence or growth of political parties that will truly reflect the opinions and aspirations of our people. The right of individuals to form associations as guaranteed by the fundamental law, includes the freedom to associate or refrain from association. In accord with this constitutional precept, it is recognized that no man is compelled by law to become a member of a political party, or, after having become such, to remain a member."
7. The question as to whether P.D. 1661 which partook of the nature of an implementing legislation and outlawing guest candidacy as published in the newspapers only on Jan. 5, 1980 after the expiration of the Jan. 4, 1980 deadline for filing of certificates of candidacy, could not be justly relied upon to disqualify candidates who were not aware of its provisions since it had not yet been promulgated much less published as of the time they filed their certificates of candidacy; that the P.D. is unquestionably penal in nature and imposes penalties forviolators and therefore could not be made to retroact without transgressing the ex post facto provisions of the Bill of Rights; and these questions of substantive due process and the application of the constitutional mandate in Art. XII-C, section 9 (1) that "bona fide candidates for any public office shall be free from any form of harassment and discrimination" and the question of real import and meaning of turncoatism such as whether one who after a gap of 9 years of no contested elections runs as an oppositionist as against the overwhelming power and resources of the dominant party or organization can genuinely be denounced as a turncoat following the spirit and not the mere letter of the Constitution and of the law, are issues of great importance and significance that have to be addressed by this Court only after the affected party shall have been given in the first instance a full dress hearing by this Court and resolved only after the fullest deliberations.
- - -
Letter-memo of
May 7, 1980
To my esteemed colleagues:
In connection with our scheduled deliberation tomorrow on dis- qualification cases, particularly the Ticzon vs. Comelec cases involving the mayorality of San Pablo City, where the repudiated candidate Cesar P. Dizon continues (although we are now into the fourth month after the January 30th elections) to sit as mayor due to the Court's failure up to now to enforce its last restraining order of February 15, 1980 against the of Ticzon and proclamation of the repudiated candidate, therefore incumbent mayor Dizon (notwithstanding the candid recommendation of Assistant Solicitor General Vicente Mendoza, who had been assured by Com- elec that they would respect the Court's restraining order), I am submitting the following considerations supplementing my original memorandum of March 25, 1980 which was distributed to you on the same date (and copy whereof is hereto attached for your ready reading/reference). —
1. I submit for your serious consideration the vote which our colleague Justice Antonio 19 left on April 18, 1980 with the Chief Justice as follows:
MEMORANDUM for:
Hon. Enrique M. Fernando
Chief Justice
O f f i c e
Re: The cases of Zacarias A. Ticzon
vs. COMELEC, et at — G.R. Nos.
52451 and 52678
1. I am for setting aside the proclamation of Cesar P. Dizon as Mayor of San Pablo City;
2. I am for the definite resolution of the question of dis- qualification after a full dress hearing in accordance with due process; and
3. Pending the resolution of that question the Vice Mayor who has been elected and proclaimed should act as Mayor.
(Sgd.) FELIX Q. ANTONIO
Associate Justice
2. The very least that should be done is enforce now the Court's last restraining order (and maintain the integrity of the Court's orders and the respect owing thereto) and set aside the proclamation of Dizon since as the repudiated loser, he has no right to claim the mayoralty as an also-ran even though Ticzon may ultimately be declared disqualified.
3. If the Court is to be consistent with its ruling in Pimentel and other cases, Ticzon should in the meantime be duly proclaimed and allowed to assume office as mayor, without prejudice to holding la fun dress hearing' on his alleged disqualification, in accordance with the vote of Justice Abad Santos. (See pp. 3-4, of my March 25th Memorandum.)
4. The question of the disqualification of Ticzon (and of other winning candidates as well) should be threshed out only 'after a full dress hearing in accordance with due process,' as urged by Justice Antonio in his above vote.
5. Such a full dress hearing is necessary and imperative. In addition to the compelling questions of due process, lack of fair notice and suddenness of the call for the Jan. 30th elections, the equally important constitutional right of free association the ex post facto nature of P.D. 1661 published only after the January 4, 1980 deadline (for filing of certificates of candidacy), it must be borne in mind that the Court has up to now never squarely addressed the question that the KBL became a political party only in late December, 1979 after the calling of the Jan. 30th elections.
Before then by the Court's own pronouncements in the Peralta and Laban cases of 1978, the dominant KBL was not apolitical party but an umbrella organization of all pre-martial law political parties. So, the jockeying of prospective candidates like Assemblyman Amante for a place in the KBL ticket (whom we did not disqualify, unlike Gabatan and Evasco) could not be deemed as opportunism. Neither could their going their own way with the NP as an opposition party (as expressly recognized by the President) be termed as turn-coatism. (Assemblyman Amante, after running as NP candidate is back with the KBL after his defeat.)
6. The Court must have the full big picture before it can disqualify any candidate for alleged turncoatism. (For example, in the face of the KBL having become a political party only in late December, 1979, then Dizon who was elected mayor in 1971 as an NP, should be the one disqualified for tumcoatism for having joined the KBL.) The Court's minute resolutions in the Gabatan and Evasco cases upholding their disqualification on alleged substantial evidence are not precedents, for the facts of the KBL having become a party only in December, 1979 and the many issues of substantive due process and fair play, etc. were never dealt with in those cases.
7. It is only fair and just that the Court remandor turn overall such disqualification cases for a full dress hearing and that the winners be allowed meanwhile to assume their offices. The sovereign will of the electorate cannot be lightly treated or cavalierly disregarded by the Court.
Thank you.
Upon the final voting on the cases last month, I understood that even though Dizon's proclamation would stand, by virtue of the plurality of seven votes in his favor, Ticzon would be reserved the right of protest and the dismissal of Ticzon's petitions would be without prejudice to his pursuing the pending election protest against Dizon (which he had filed ad cautelam with the Comelec in February, 1980, expressly subject to the outcome of the cases at bar), consistently with the Court's reservation in all other cases. The plurality decision's action now upholding Ticzon's disqualification on the bare pronouncement that the Comelec's finding of turncoatism against him "is not a whimsical and capricious finding" and "is binding and conclusive on this Court" (at pages 12-13, decision), has regretably and wrongfully foreclosed totally and shut out any right of protest or vindication on Ticzon's part.
I vote accordingly to grant the petitions at bar, specifically (a) to set aside the proclamation of Dizon; and (b) to set aside the Comelec resolution disqualifying Ticzon and to direct the original canvassing board to forthwith reconvene and complete the canvass and proclaim Ticzon as the winning candidate, so that he may assume his rightful office of mayor of San Pablo City without further delay; and (c) therewith to declare moot the Armedilla petition (G.R. 53393) to declare Dizon disqualified as a turncoat for having changed his political party affiliation during his term of office.
Footnotes
1 Section II of Article XII(C)of the New Constitution provides: "Any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by aggrieved party within thirty (30) days from receipt of a copy thereof."
2 Aquilino Q. Pimentel, Jr., et al. vs. Commission on Elections, et al., G. R. No. 52428, February 21, 1980.
3 Renato N. Reyes vs. Commission on Elections, et al., G. R. No. 52699, May 15, 1980; Cesar E. Nepomuceno, Leon C. Arcinas and Ruben C. Avenido vs. COMELEC and Oscar E. Laserna, G. R. Nos. 52427 and 52506, May 15, 1980.
4 Section 10, Article XII (C) of the New Constitution provides: "No elective public officer may change his political party affiliation during his term of office, and no candidate for any elective public office may change his political party affiliation within six (6) months immediately preceding or following an election"; and Section 1 of the Presidential Decree No. 1661, as amended provides: "It shall be unlawful for any registered or accredited political party to nominate and/or support as its official candidate any person belonging to another accredited or registered party unless he has affiliated with the nominating party at least six (6) months before the election: Provided, that a person who participated as an officer in the Campaign of a political party, group or aggrupation in the immediately preceding elections shall be deemed a member of such party as of the date of the political campaign, for purposes of nomination as official candidate of such party in succeeding elections. "
5 Comelec Resolution dated January 19, 1980, Annex A to Petition p. 18, Rollo
6 G.R. No. 52401, Resolution of January 28, 1980; See G. R. No. L-32381, Gabatan vs. COMELEC, Resolution of January 26, 1980.
7 pp. 5-8, Petition, pp. 7-10, Rollo.
8 Bashier vs. COMELEC, 43 SCRA 238; Puñgutan vs. Abubakar, et al., 43 SCRA 1, 10-11; Lucman vs. Dimaporo, 33 SCRA 387- 388.
9 82 SCRA 30, G.R. No. L-47771, March 11, 1978.
10 E. G., Mekin vs. Wolfe, 2 Phil. 7 4, 78 i 1903); U. S. vs. Jueves, 23 Phil. 100, 105 (1912); Roman Oath. Bishop of Lipa vs. Municipal of Taal, 38 Phil. 367 (1918); Province of Camarines Sur vs. Director of Lands, 64 Phil. 600 (1937); Ongsiako vs. Gamboa, 86 PhiL 50, 54 (1 950); Tolentino vs. Angeles, 99 Phil. 309, 318 (1956); Phil. National Bank vs. Ruperto, L-13777, June 30, 1960; Santos vs. Secretary of Public Works & Communications, L-16049, March 18, 1967.
Teehankee, J.
1
January 2, 1980
Ex-Vice Mayor Juan M. Francisco
Chairman, Municipal Committee
Kilusang Bagong Lipunan (KBL)
Taytay, Rizal
Dear Sir:
In view of the accreditation by the Commission on Elections of the Kilusang Bagong Lipunan (KBL) as apolitical party separate and distinct from the Nacionalista Party (NP), I am hereby tendering my resignation as MEMBER, MUN. COM. Kilusang Bagong Lipunan, Taytay, Rizal.
My disassociation from the KBL was prompted by my desire to remain a loyal Nacionalista Party member, which is also accredited as a separate and distinct political party.
(Sgd.) MANUEL I. SANTOS
2 82 SCRA 196, March 25, 1978.
3 G.R. No. 52451 (Zacarias A. Ticzon vs. Comelec); G.R. No. 52678 (Zacarias A. Ticzon vs. Comelec, et al., and G.R. No. 53393 (Ramon Armedilla vs, Comelec, et al., [the decision of which is scheduled for release together with this case for the current month of March ].
4 G.R. No. 52789, Dec. 19, 1980.
Teehankee, J.
1 At the time of the 11th hour issuance of this resolution, the canvassing board had canvassed the returns from 213 out of 275 voting centers and Ticzon had established an insurmountable lead of 2,994 (22,871 against 19, 877 for Dizon) votes with only 62 returns not yet canvassed. The Ministry of Education and Culture quick court based on duplicate originals of the election returns from all voting centers showed Ticzon the winner over Dizon by 2,204 (30,178 vs. 27,914 for Dizon) votes (Annex A of petition in G.R. 52451). The proclamation of Dizon with "(No opponent)" listed him with 28,119 votes (1,959 short of Ticzon's 30,178 votes, which the Comelec arbitrarily ordered to be considered as "stray votes"). Ticzon's complete victory over Dizon is reflected by the fact that Ticzon's entire ticket for vice mayor and the Sangguniang Bayan of San Pablo City, whom the Comelec could not disqualify, swept the elections with the Ticzon's vice-mayoralty teammate Jimmy Gonzales posting a 10,757 vote-margin over his opponent (33,128 vs. 22,371) and the two SB top winners garnering more votes than Dizon, Virginia B. Estrada with 29,889 and Reynato A. Estrellado with 29,448 (Rollo in G.R. 52678, at pages 49 and 50).
2 Chief Justice Castro's dissent in Aratuc vs. Comelec, 88 SCRA 251, 287 (1979); emphasis supplied.
3 23 Phil. 238.
4 The cited constitutional prohibition reads:
SEC. 10. No elective public officer may change his political party affiliation during his term of office, and no candidate for any elective public office may change his political affiliation within six months immediately preceding or following an election.
This Court has held that the term of office of the elected local officials in 1971 was the same term (not a new one) converted beyond the original 4 years to an indefinite term to be held by the incumbent "until otherwise provided by law or decreed by the incumbent President" [Paredes vs. Men Abad, 56 SCRA 5221 so there is no question that the constitutional prohibition against change of political affiliation by an elective official during his term absolutely applied to Dizon.
5 Reported in Metropolitan papers of February 27, 1980.
6 G.R. No. 52527, September 4, 1980.
7 G.R. No. 52789, December 19, 1980.
8 Article XIIC, section 9, 1973 Constitution.
9 G.R. No. 52830, Nov. 28, 1980, with Aquino, J. taking no part.
10 G.R. No. 54039, Nov. 28, 1980, with Aquino, J. taking no part.
11 G.R. No. 52791, February 26, 1981.
12 G.R. Nos. 53416 & 53475, October 14, 1980 and Resolution of November 6, 1980, See dissenting opinion a writer.
13 Emphasis copied.
14 Article XII C, section 11, 1973 Constitution.
4-a 73 Phil. 24-,.
15 G.R. No. 53962, February 3,1981; see also writer's dissent.
16 A partial list of eleven (11) decisions of this Court setting aside the Comelec's resolutions as issued with grave abuse of discretion :
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Case No.
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Title
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Date
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52375
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Edelmiro Amante vs. Co
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January 26, 1980
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|
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melec, et al.
|
|
52406
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Hilario C. Lagmay, et al
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January 28, 1980
|
|
|
vs. Comelec, et al.
|
|
52428
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Aquilino Q. Pimentel, Jr.,
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February 21, 1980
|
|
|
et al. vs. Comelec
|
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52427 &
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Cesar E. Nepomuceno, et
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May 15, 1980
|
|
52506
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al. vs. Comelec, et al.
|
|
52699
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Renato U. Reyes vs. Co-
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May 15,1980
|
|
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melec et al.
|
|
53730
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Aurora Abrazaldo vs. Com-
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Nov. 20, 1980
|
|
|
melec
|
|
52830
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Antonio O. Singco vs. Co-
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Nov. 28, 1980
|
|
|
melec, et al.
|
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53581-83
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Maria J. Pimentel, et al.
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Dec. 19, 1980
|
|
|
vs. Comelec, et al.
|
|
52798
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Romeo S. Gonzales vs.
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Dec. 19,1980
|
|
|
Comelec et al.
|
|
52426
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Wenceslao R. Lagumbay
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Jan. 13, 1981
|
|
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et al., vs. Comelec
|
|
52692
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Jesus E. Sanciangco, Jr..
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Jan. 27, 1981
|
|
|
et al. vs. Comelec, et al.
|
17 G.R. 53532, July 25, 1980.
18 With some minor revisions for accuracy's sake.
(1) Times-Journal issue of Nov. 16, 1979 and Bulletin Today issue of Nov. 21, 1979.
(2) Bulletin Today issue of Nov. 22, 1979.
(3) Daily Express issue of Jan. 4, 1980.
19 Justice Antonio retired from the Court on his 70th birthday last year on May 18, 1980.
The Lawphil Project - Arellano Law Foundation
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