G.R. No. 207900 - Separate Opinions

Mayor Gamal S. Hayudini v. COMELEC and Mustapha J. Omar, G.R. No. 207900, 22 April 2014
♦ Decision, Peralta [J]
♦ Concurring and Dissenting Opinion, Leonardo-De Castro [J]
♦ Separate Concurring Opinion, Brion [J]

MAYOR GAMAL S. HAYUDINI, Petitioner,
vs.
COMMISSION ON ELECTIONS and MUSTAPHA J. OMAR, Respondents.

With all due respect to the Ponente of the decision in the above-quoted case, I concur in the disposition of the instant case affirming the resolution of the Commission on Elections (COMELEC) En Banc in so far as it affirmed the cancellation of petitioner Gamal S. Hayudini's Certificate of Candidacy (CoC) and the proclamation by COMELEC of Salma A. Omar as duly elected Mayor of South Ubian, Tawi-Tawi. I take exception, however, to the sweeping opinion in the ponencia that "whether a certificate of candidacy is cancelled before or after the elections is immaterial (to determine the validity of the votes cast), because the cancellation on such ground means he was never a candidate from the very beginning, his certificate of candidacy being void ab initio." On the contrary, by virtue of the provisions of Section 7 in relation to Section 6, both of Republic Act (R.A.) No. 6646, there should be a distinction in the treatment of votes cast where the petition for cancellation of the certificate of candidacy had been finally adjudicated before the election and where said petition remained pending during the election.

Hence, I do not agree with the opinion of Mr. Justice Arturo D. Brion that "In a CoC cancellation proceeding, the law is silent on the legal effect of a judgment cancelling the CoC and does not also provide any temporal distinction,"1 and that in Fermin v. Commission on Elections,2 the Court held that "Section 7 cannot be construed to refer to Section 6 which does not provide for a procedure but for the effects of disqualification, but can only refer to the procedure provided in Section 5 of [R.A. 6646] on nuisance candidates." This opinion is also anchored on the application, without qualification, of the aforementioned principle: that the cancellation of the certificate of candidacy renders it void ab initio, and if said cancellation takes effect after election, it should be given retroactive effect so as to nullify the votes cast for the ineligible candidate. I submit that the issue of whether Section 6 should be applied to a petition for cancellation of a certificate of candidacy pursuant to Section 7, particularly, in determining whether or not to consider stray the votes cast, should not be based on said technical ground, but should take into consideration the primordial principle that the sanctity of the expression of the people’s will through the ballot must be preserved. Accordingly, the time of cancellation of the certificate of candidacy, whether it occurs before or after the election, is a material factor to consider in deciding whether to nullify the votes already cast. That is the intent and import of the language of Section 7 in relation to Section 6 which should be given effect.

Section 5 of R.A. No. 6646 provides for the Procedure in Cases of Nuisance Candidates. Whereas, Sections 6 and 7 of the same law read:

Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis supplied)

Sec. 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. - The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881 [The Omnibus Election Code]. (Emphasis supplied.)

With all due respect, the Court did not categorically resolve or decide in Fermin that "Section 7 cannot be construed to refer to Section 6" but merely quoted that part of the Dissenting Opinion of then Chief Justice Hilario G. Davide, Jr. in Aquino v. Commission on Elections.3 The issue in Fermin is the timeliness of the filing of the petition under Section 78 and not the effect of the pendency of the said petition during election day to the votes cast.

Fermin was a consolidation of two petitions for certiorari under Rule 64 in relation to Rule 65 of the Rules of Court, namely, G.R. No. 179695 and G.R. No. 182369, both filed by Mike A. Fermin to assail several resolutions of the COMELEC. Quoted verbatim hereunder are the relevant facts and findings of the Court in the two consolidated cases, to wit:

After the creation of Shariff Kabunsuan, the Regional Assembly of the Autonomous Region in Muslim Mindanao (ARMM), on November 22, 2006, passed Autonomy Act No. 205 creating the Municipality of Northern Kabuntalan in Shariff Kabunsuan. This new municipality was constituted by separating Barangays Balong, Damatog, Gayonga, Guiawa, Indatuan, Kapinpilan, P. Labio, Libungan, Montay, Sabaken and Tumaguinting from the Municipality of Kabuntalan.

Mike A. Fermin, the petitioner in both cases, was a registered voter of Barangay Payan, Kabuntalan. On December 13, 2006, claiming that he had been a resident of Barangay Indatuan for 1 year and 6 months, petitioner applied with the COMELEC for the transfer of his registration record to the said barangay. In the meantime, the creation of North Kabuntalan was ratified in a plebiscite on December 30, 2006, formally making Barangay Indatuan a component of Northern Kabuntalan.

Thereafter, on January 8, 2007, the COMELEC approved petitioner’s application for the transfer of his voting record and registration as a voter to Precinct 21A of Barangay Indatuan, Northern Kabuntalan. On March 29, 2007, Fermin filed his Certificate of Candidacy (CoC) for mayor of Northern Kabuntalan in the May 14, 2007 National and Local Elections.

On April 20, 2007, private respondent Umbra Ramil Bayam Dilangalen, another mayoralty candidate, filed a Petition for Disqualification [the Dilangalen petition] against Fermin, docketed as SPA (PES) No. A07-003 [re-docketed as SPA No. 07-372 before the COMELEC] with the Office of the Provincial Election Supervisor of Shariff Kabunsuan. The petition alleged that the petitioner did not possess the period of residency required for candidacy and that he perjured himself in his CoC and in his application for transfer of voting record.

Elections were held without any decision being rendered by the COMELEC in the said case. After the counting and canvassing of votes, Dilangalen emerged as the victor with 1,849 votes over Fermin’s 1,640. The latter subsequently filed an election protest (Election Case No. 2007-022) with the Regional Trial Court (RTC), Branch 13 of Cotabato City.

Pivotal in the ascertainment of the timeliness of the Dilangalen petition is its proper characterization.

As aforesaid, petitioner, on the one hand, argues that the Dilangalen petition was filed pursuant to Section 78 of the OEC; while private respondent counters that the same is based on Section 68 of the Code.

After studying the said petition in detail, the Court finds that the same is in the nature of a petition to deny due course to or cancel a CoC under Section 78 of the OEC. The petition contains the essential allegations of a "Section 78" petition, namely: (1) the candidate made a representation in his certificate; (2) the representation pertains to a material matter which would affect the substantive rights of the candidate (the right to run for the election for which he filed his certificate); and (3) the candidate made the false representation with the intention to deceive the electorate as to his qualification for public office or deliberately attempted to mislead, misinform, or hide a fact which would otherwise render him ineligible. It likewise appropriately raises a question on a candidate’s eligibility for public office, in this case, his possession of the one-year residency requirement under the law.

Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate.

At this point, we must stress that a "Section 78" petition ought not to be interchanged or confused with a "Section 68" petition. They are different remedies, based on different grounds, and resulting in different eventualities. Private respondent’s insistence, therefore, that the petition it filed before the COMELEC in SPA No. 07-372 is in the nature of a disqualification case under Section 68, as it is in fact captioned a "Petition for Disqualification," does not persuade the Court.

The ground raised in the Dilangalen petition is that Fermin allegedly lacked one of the qualifications to be elected as mayor of Northern Kabuntalan, i.e., he had not established residence in the said locality for at least one year immediately preceding the election. Failure to meet the one-year residency requirement for the public office is not a ground for the "disqualification" of a candidate under Section 68. The provision only refers to the commission of prohibited acts and the possession of a permanent resident status in a foreign country as grounds for disqualification x x x.

Likewise, the other provisions of law referring to "disqualification" do not include the lack of the one-year residency qualification as a ground therefor x x x.

Considering that the Dilangalen petition does not state any of these grounds for disqualification, it cannot be categorized as a "Section 68" petition.

To emphasize, a petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false. The petitions also have different effects. While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. Thus, in Miranda v. Abaya, this Court made the distinction that a candidate who is disqualified under Section 68 can validly be substituted under Section 77 of the OEC because he/she remains a candidate until disqualified; but a person whose CoC has been denied due course or cancelled under Section 78 cannot be substituted because he/she is never considered a candidate.

In support of his claim that he actually filed a "petition for disqualification" and not a "petition to deny due course to or cancel a CoC," Dilangalen takes refuge in Rule 25 of the COMELEC Rules of Procedure x x x.

We disagree. A COMELEC rule or resolution cannot supplant or vary the legislative enactments that distinguish the grounds for disqualification from those of ineligibility, and the appropriate proceedings to raise the said grounds. In other words, Rule 25 and COMELEC Resolution No. 7800 cannot supersede the dissimilar requirements of the law for the filing of a petition for disqualification under Section 68, and a petition for the denial of due course to or cancellation of CoC under Section 78 of the OEC x x x.

Furthermore, the procedure laid down in the said Rule 25 of the COMELEC Rules of Procedure cannot be used in "Section 78" proceedings, precisely because a different rule, Rule 23, specifically governs petitions to deny due course to or cancel CoCs.

Having thus determined that the Dilangalen petition is one under Section 78 of the OEC, the Court now declares that the same has to comply with the 25-day statutory period for its filing. Aznar v. Commission on Elections and Loong v. Commission on Elections give ascendancy to the express mandate of the law that "the petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy." Construed in relation to reglementary periods and the principles of prescription, the dismissal of "Section 78" petitions filed beyond the 25-day period must come as a matter of course.

We find it necessary to point out that Sections 5 and 7 of Republic Act (R.A.) No. 6646, contrary to the erroneous arguments of both parties, did not in any way amend the period for filing "Section 78" petitions. While Section 7 of the said law makes reference to Section 5 on the procedure in the conduct of cases for the denial of due course to the CoCs of nuisance candidates (retired Chief Justice Hilario G. Davide, Jr., in his dissenting opinion in Aquino v. Commission on Elections explains that "the ‘procedure hereinabove provided’ mentioned in Section 7 cannot be construed to refer to Section 6 which does not provide for a procedure but for the effects of disqualification cases, [but] can only refer to the procedure provided in Section 5 of the said Act on nuisance candidates x x x."), the same cannot be taken to mean that the 25-day period for filing "Section 78" petitions under the OEC is changed to 5 days counted from the last day for the filing of CoCs. The clear language of Section 78 certainly cannot be amended or modified by the mere reference in a subsequent statute to the use of a procedure specifically intended for another type of action. Cardinal is the rule in statutory construction that repeals by implication are disfavored and will not be so declared by the Court unless the intent of the legislators is manifest. In addition, it is noteworthy that Loong, which upheld the 25-day period for filing "Section 78" petitions, was decided long after the enactment of R.A. 6646. In this regard, we therefore find as contrary to the unequivocal mandate of the law, Rule 23, Section 2 of the COMELEC Rules of Procedure which states:

Sec. 2. Period to File Petition.–The petition must be filed within five (5) days following the last day for the filing of certificates of candidacy.

As the law stands, the petition to deny due course to or cancel a CoC "may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy."

Accordingly, it is necessary to determine when Fermin filed his CoC in order to ascertain whether the Dilangalen petition filed on April 20, 2007 was well within the restrictive 25-day period. If it was not, then the COMELEC should have, as discussed above, dismissed the petition outright.1âwphi1

The record in these cases reveals that Fermin filed his CoC for mayor of Northern Kabuntalan for the May 14, 2007 National and Local Elections on March 29, 2007. It is clear therefore that the petition to deny due course to or cancel Fermin’s CoC was filed by Dilangalen well within the 25-day reglementary period. The COMELEC therefore did not abuse its discretion, much more gravely, when it did not dismiss the petition outright.

From the aforequoted decision, it cannot be categorically asserted that the Court has ruled that "Section 7 cannot be construed to refer to Section 6" of R.A. No. 6646. Justice Brion cannot definitely state, using as basis the case of Fermin, that my conclusion -- that the instruction in Section 7 in relation to Section 6 of R.A. No. 6646 is that the effects of a disqualification case apply to petitions to deny due course to or cancel CoCs -- is wrong. What the Court did in Fermin was merely "to point out that Sections 5 and 7 of Republic Act (R.A.) No. 6646, contrary to the erroneous arguments of both parties, did not in any way amend the period for filing ‘Section 78’ petitions." Admittedly, while the Court made mention therein that "Section 7 of the said law makes reference to Section 5 on the procedure in the conduct of cases for the denial of due course to the CoCs of nuisance candidates," the Ponente of the decision hastened to add that such statement was lifted from the Dissenting Opinion of then Chief Justice Hilario G. Davide, Jr. relative to the case of Aquino v. Commission on Elections.5 This portion of the decision in Fermin is an obiter dictum and in no way definitive of the resolution of the present case for the issues in Fermin are vastly dissimilar to this case.

Moreover, a close examination of the provisions of Sections 5 and 6 will show that both contain procedural rules, even if Section 6 is entitled "Effect of Disqualification Case." Note that Section 6 adverts to the continuation of the trial, hearing of the action, inquiry or protest and the filing of motion for suspension of the proceedings. Furthermore, if the intent is to limit the application of Section 7 to Section 5, Section 7 should have immediately followed Section 5 in order to exclude from its application Section 6. On the contrary, Section 7 refers to the procedure hereinabove provided. "Hereinabove" or above Section 7 are found Sections 5 and 6.

Hence, instead of relying on the dissenting opinion of former Chief Justice Davide, I subscribe to the validity of the majority opinion written by Mr. Justice Santiago M. Kapunan in Aquino, which stated that –

Petitioner conveniently confuses the distinction between an unproclaimed candidate to the House of Representatives and a member of the same. Obtaining the highest number of votes in an election does not automatically vest the position in the winning candidate. Section 17 of

The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective Members.

Under the above-stated provision, the electoral tribunal clearly assumes jurisdiction over all contests relative to the election, returns and qualifications of candidates for either the Senate or the House only when the latter become members of either the Senate or the House of Representatives. A candidate who has not been proclaimed and who has not taken his oath of office cannot be said to be a member of the House of Representatives subject to Section 17 of Article VI of the Constitution.

While the proclamation of a winning candidate in an election is ministerial, B.P. 881 in conjunction with Sec. 6 of R.A. 6646 allows suspension of proclamation under circumstances mentioned therein. Thus, petitioner’s contention that "after the conduct of the election and (petitioner) has been established the winner of the electoral exercise from the moment of election, the COMELEC is automatically divested of authority to pass upon the question of qualification" finds no basis in law, because even after the elections the COMELEC is empowered by Section 6 (in relation to Section 7) of R.A. 6646 to continue to hear and decide questions relating to qualifications of candidates. Section 6 states:

Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.

Under the above-quoted provision, not only is a disqualification case against a candidate allowed to continue after the election (and does not oust the COMELEC of its jurisdiction), but his obtaining the highest number of votes will not result in the suspension or termination of the proceedings against him when the evidence of guilt is strong. While the phrase "when the evidence of guilt is strong" seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code, SECTION 7 OF R.A. 6646 ALLOWS THE APPLICATION OF THE PROVISIONS OF SECTION 6 TO CASES INVOLVING DISQUALIFICATION BASED ON INELIGIBILITY UNDER SECTION 78 OF B.P. 881. Section 7 states:

Sec. 7. Petition to Deny Due Course or to Cancel a Certificate of Candidacy. — The procedure hereinabove provided shall apply to petition to deny due course to or cancel a certificate of candidacy based on Sec. 78 of Batas Pambansa 881.6 (Emphases supplied.)

Accordingly, I do not agree with the overly broad statement in the majority opinion and the concurring opinion of Justice Brion that the cancellation of the certificate of candidacy whether before or after the election is immaterial in determining the validity of the votes cast. The said statement or opinion, which in effect declines to abide with the mandate in Section 7 to apply Section 6 to a petition to deny due course to or cancel a certificate of candidacy, is based on the technical argument that when a person’s certificate of candidacy is denied due course or cancelled, he is not to be considered a candidate. This technical ground may be properly applied in certain cases as where substitution is not allowed, such as when the cancellation takes place before election. However, it may not suffice to justify the nullification of the votes already cast before the certificate of candidacy is cancelled by final judgment. Whether it is disqualification or ineligibility, if votes were cast before final adjudication of disqualification or ineligibility, there appears to be no justifiable reason to consider as stray the votes cast by the voters if in their honest belief they voted for a qualified or eligible candidate. The said voters should not be disenfranchised because of the unresolved petition for cancellation of a certificate of candidacy unless the ground for disqualification or ineligibility is of such notoriety that the voters can be considered to have deliberately squandered their votes for a disqualified or ineligible candidate. The nullification of the votes of those voters who were unaware of the disqualification or ineligibility of the person they voted for because of the unresolved petition for cancellation of the certificate of candidacy, which effectively disenfranchises them, cannot be justified on the excuse that the votes cast for the next ranking candidate are anyway to be considered as an expression of the sovereign will. It is for this reason that I do not agree to the resulting automatic disenfranchisement of the voters if the certificate of candidacy is cancelled after the election. Such consequence emanates from the undue interpretation that Section 7 should not be construed to allow the application of Section 6 to the petition for cancellation or denial of the certificate of candidacy, which interpretation is grounded principally on the theory that no certificate of candidacy means that there is no existing candidate. This will give precedence to technicality over substance, particularly, as it impacts on the sanctity of the vote of the electorate incognizant of the disqualification or ineligibility of the one they voted for.

However, except for its implication on the interpretation of the provisions of Sections 6 and 7 of R.A. No. 6646, I concur in the result of the ponencia of Justice Diosdado M. Peralta. This case may be likened to the A rat ea case in so far as the decision of the Regional Trial Court ordering the deletion of Hayudini's name in Barangay Bintawlan's permanent list of voters, which rendered him ineligible to run for the position of mayor of South Ubian, was already final and executory before the election.

We can now apply the rule that a second placer is allowed to take the place of a disqualified winning candidate when two requisites concur, namely: (i) the candidate who obtained the highest number of votes is disqualified; and (ii) the electorate was fully aware in fact and in law of that candidate's disqualification as to bring such awareness within the realm of notoriety but the electorate still cast the plurality of the votes in favor of the ineligible candidate.7 And it is with the concurrence of the two requisites that the voting public may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case the eligible candidate with the second highest number of votes may be deemed elected.8 The finality of the RTC decision which definitely determined the ineligibility of Hayudini long before the election, the votes cast in his favor are considered stray and Salma A. Omar, the second placer, is deemed the duly elected Mayor of the Municipality of South Ubian, Tawi-Tawi.

I concur with the result reached by the ponencia but submit this Separate Concurring Opinion to state my own views and observations on the propriety of the Commission on Elections'(Comelec) cancellation of the petitioner Gamal S. Hayudini's (Hayudini) Certificate of Candidacy (CoC) and its proclamation of the "second placer", Salma A. Omar (Salma) as the duly-elected Mayor of South Ubian, Tawi-Tawi.

On October 5, 2012, Hayudini filed his CoC for Mayor of South Ubian, Tawi-Tawi. On October 15, 2012, the respondent Mustapha Omar (Mustapha) filed a petition to deny due course or cancel Hayudini' s CoC on the ground that the latter made a false representation in his residence.

On November 30, 2012, the Election Registration Board of South Ubian issued a certificate denying Hayudini's petition for registration prompting him to file a petition for inclusion in the permanent list of voters of Brgy. Bintawlan, South Ubian, Tawi-Tawi before the Municipal Circuit Trial Court (MCTC). The MCTC later granted Hayudini's petition.

On January 3, 2013, the Comelec issued a Resolution dismissing Omar's petition to cancel Hayudini's CoC for lack of evidence.

On March 8, 2013, the Regional Trial Court (RTC) on appeal issued its decision reversing the MCTC ruling and ordering the deletion of Hayudini's name in Brgy. Bintawlan's permanent list of voters. Under Section 138 of the Omnibus Election Code, the decision of the RTC on all cases of inclusion and exclusion of voters is final and executory.

On March 26, 2013, Mustapha filed a petition anew to cancel Hayudini's CoC on the basis of the final and executory RTC decision delisting his name from the permanent list of voters of Brgy. Bintawlan.

Meanwhile, on April 17, 2013, the Court of Appeals later denied Hayudini’s appeal from the RTC decision on the ground that he initiated a wrong mode of appeal.

On May 13, 2013, the Municipal Board of Canvassers proclaimed Hayudini the duly elected Mayor of South Ubian, Tawi-Tawi with a majority of 3,148 votes as opposed to 2, 264 votes garnered by the second placer Salma. Subsequently, Hayudini took his oath and assumed the office of Mayor of South Ubian, Tawi-Tawi.

On June 20, 2013, the Comelec Second Division issued a Resolution cancelling Hayudini’s CoC. The Second Division held that the final and executory RTC Decision (that ordered the delisting of Hayudini’s name from the permanent list of voters of Brgy. Bintawlan) is a supervening event that if disregarded, would render the execution of its January 3, 2013 Resolution unjust. It ruled that Hayudini can no longer run for mayor of South Ubian, Tawi-Tawi as he is no longer a registered voter of the municipality. Thus, the Second Division concluded that the final and executory judgment also amounts to a notice to the Comelec that Hayudini is not a candidate for purposes of the May 13, 2013 elections; his CoC is void ab initio which cannot give rise to a valid candidacy much less to valid votes.

On July 10, 2013, the Comelec en banc affirmed the Second Division ruling cancelling Hayudini’s CoC by virtue of the final and executory RTC Decision excluding his name in the voter’s list. It emphasized that even if the cancellation of Hayudini’s CoC was not declared by final judgment before the elections and that Hayudini garnered the highest number of votes, the Comelec citing Section 7 in relation to Section 6 of RA 6646 held that it had the jurisdiction to annul his proclamation as the proclamation itself was null and void. Citing the Court’s dicta in Efren Racel Aratea v. Commission on Elections, et al.,1 that a cancelled CoC cannot give rise to a valid candidacy much less to a valid vote, the Comelec annulled Hayudini’s proclamation and proclaimed Salma the duly elected mayor of South Ubian, being the qualified candidate obtaining the highest number of votes.

I concur with the ponencia’s (i) position that Hayudini committed a false representation as to his eligibility (because he was not a registered voter of Barangay Bintawlan, South Ubian, Tawi-Tawi), thus his CoC was void ab initio¸ the effect of which retroacts to the date of the filing of his CoC and (ii) conclusion that Salma, the "second placer" in the 2013 elections for the mayoralty post of South Ubian, Tawi-Tawi, should be the rightful mayor.

I submit that ground cited in Mustapha’s petition to deny due course or cancel CoC was appropriate for the cancellation of Hayudini’s CoC. Thus, the present case should be resolved under the rules of cancellation of CoC and not from the point of disqualification that Justice De Castro advocates.

I wish to reiterate in this Separate Concurring Opinion, as I did in the allied cases of Efren Racel Aratea v. Commission on Elections, et al.,2 Mayor Barbara C. Talaga v. Commission on Elections, et al.,3 and Dominador G. Jalosjos, Jr. v. Commission on Elections, et al.,4 that the present case should be resolved from an analytical approach that starts from a consideration of the nature of a CoC; the distinctions between eligibility or lack of it and disqualification; the effects of cancellation and disqualification; and the applicable remedies.

A basic rule and one that cannot be repeated often enough is that the CoC is the document that creates the status of a candidate. In Sinaca v. Mula,5 the Court described the nature of a CoC as follows –

A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidate's political creed or lack of political creed. It is a statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated.

Both the 1973 and 1987 Constitutions left to Congress the task of providing the qualifications of local elective officials. Congress undertook this task by enacting Batas Pambasa Bilang (B.P. Blg.) 337 (Local Government Code or LGC), B.P. Blg. 881 (Omnibus Election Code or OEC) and, later, Republic Act (R.A.) No. 7160 (Local Government Code of 1991 or LGC 1991).6

Under Section 79 of the OEC, a political aspirant legally becomes a "candidate" only upon the due filing of his sworn CoC.7 In fact, Section 73 of the OEC makes the filing of the CoC a condition sine qua non for a person to "be eligible for any elective public office"8 – i.e., to be validly voted for in the elections. Section 76 of the OEC makes it a "ministerial duty" for a COMELEC official "to receive and acknowledge receipt of the certificate of candidacy"9 filed.

Section 2. Contents of certificate of candidacy. - The certificate of candidacy shall be under oath and shall state that the person filing it is announcing his candidacy for the office and constituency stated therein; that he is eligible for said office, his age, sex, civil status, place and date of birth, his citizenship, whether natural-born or naturalized; the registered political party to which he belongs; if married, the full name of the spouse; his legal residence, giving the exact address, the precinct number, barangay, city or municipality and province where he is registered voter; his post office address for election purposes; his profession or occupation or employment; that he is not a permanent resident or an immigrant to a foreign country; that he will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, decrees, resolution, rules and regulations promulgated and issued by the duly-constituted authorities; that he assumes the foregoing obligations voluntarily without mental reservation or purpose of evasion; and that the facts stated in the certificate are true and correct to the best of his own knowledge. [italics supplied]

From the point of view of the common citizen who wants to run for a local elective office, the above recital contains all the requirements that he must satisfy; it contains the basic and essential requirements applicable to all citizens to qualify for candidacy for a local elective office. These are their formal terms of entry to local politics. A citizen must not only possess all these requirements; he must positively represent in his CoC that he possesses them. Any falsity on these requirements constitutes a material misrepresentation that can lead to the cancellation of the CoC. On this point, Section 78 of the OEC provides:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by [any] person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. [italics, emphases and underscores ours]

Sec. 39. Qualifications. – (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.

(c) Candidates for the position of Mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day. [italics ours]

Notably, Section 74 of the OEC does not require any negative qualification except only as expressly required therein. A specific negative requirement refers to the representation that the would-be candidate is not a permanent resident nor an immigrant in another country. This requirement, however, is in fact simply part of the positive requirement of residency in the locality for which the CoC is filed and, in this sense, is not strictly a negative requirement.

Neither does Section 74 require any statement that the would-be candidate does not possess any ground for disqualification specifically enumerated by law, as disqualification is a matter that the OEC and LGC 1991 separately deal with, as discussed below. Notably, Section 74 does not require a would-be candidate to state that he has not served for three consecutive terms in the same elective position immediately prior to the present elections.

With the accomplishment of the CoC and its filing, a political aspirant officially acquires the status of a candidate and, at the very least, the prospect of holding public office; he, too, formally opens himself up to the complex political environment and processes. The Court cannot be more emphatic in holding "that the importance of a valid certificate of candidacy rests at the very core of the electoral process."11

Pertinent laws12 provide the specific periods when a CoC may be filed; when a petition for its cancellation may be brought; and the effect of its filing. These measures, among others, are in line with the State policy or objective of ensuring "equal access to opportunities for public service,"13 bearing in mind that the limitations on the privilege to seek public office are within the plenary power of Congress to provide.14

The Concept of Disqualification vis-a-vis
Remedy of Cancellation; and Effects of
Disqualification.

To disqualify, in its simplest sense, is (1) to deprive a person of a power, right or privilege; or (2) to make him or her ineligible for further competition because of violation of the rules.15 It is in these senses that the term is understood in our election laws.

Thus, anyone who may qualify or may have qualified under the general rules of eligibility applicable to all citizens (Section 74 of the OEC) may be deprived of the right to be a candidate or may lose the right to be a candidate (if he has filed his CoC) because of a trait or characteristic that applies to him or an act that can be imputed to him as an individual, separately from the general qualifications that must exist for a citizen to run for a local public office. Notably, the breach of the three-term limit is a trait or condition that can possibly apply only to those who have previously served for three consecutive terms in the same position sought immediately prior to the present elections.

In a disqualification situation, the grounds are the individual traits or conditions of, or the individual acts of disqualification committed by, a candidate as provided under Sections 68 and 12 of the OEC and Section 40 of LGC 1991, and which generally have nothing to do with the eligibility requirements for the filing of a CoC.16

Sections 68 and 12 of the OEC (together with Section 40 of LGC 1991, outlined below) cover the following as traits, characteristics or acts of disqualification: (i) corrupting voters or election officials; (ii) committing acts of terrorism to enhance candidacy; (iii) overspending; (iv) soliciting, receiving or making prohibited contributions; (v) campaigning outside the campaign period; (vi) removal, destruction or defacement of lawful election propaganda; (vii) committing prohibited forms of election propaganda; (viii) violating rules and regulations on election propaganda through mass media; (ix) coercion of subordinates; (x) threats, intimidation, terrorism, use of fraudulent device or other forms of coercion; (xi) unlawful electioneering; (xii) release, disbursement or expenditure of public funds; (xiii) solicitation of votes or undertaking any propaganda on the day of the election; (xiv) declaration as an insane; and (xv) committing subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude.

Section 40 of LGC 1991, on the other hand, essentially repeats those already in the OEC under the following disqualifications:

Together, these provisions embody the disqualifications that, by statute, can be imputed against a candidate or a local elected official to deny him of the chance to run for office or of the chance to serve if he has been elected.

A unique feature of "disqualification" is that under Section 68 of the OEC, it refers only to a "candidate," not to one who is not yet a candidate. Thus, the grounds for disqualification do not apply to a would-be candidate who is still at the point of filing his CoC. This is the reason why no representation is required in the CoC that the would-be candidate does not possess any ground for disqualification. The time to hold a person accountable for the grounds for disqualification is after attaining the status of a candidate, with the filing of the CoC.

To sum up and reiterate the essential differences between the eligibility requirements and disqualifications, the former are the requirements that apply to, and must be complied by, all citizens who wish to run for local elective office; these must be positively asserted in the CoC. The latter refer to individual traits, conditions or acts applicable to specific individuals that serve as grounds against one who has qualified as a candidate to lose this status or privilege; essentially, they have nothing to do with a candidate’s CoC.

When the law allows the cancellation of a candidate’s CoC, the law considers the cancellation from the point of view of those positive requirements that every citizen who wishes to run for office must commonly satisfy. Since the elements of "eligibility" are common, the vice of ineligibility attaches to and affects both the candidate and his CoC. In contrast, when the law allows the disqualification of a candidate, the law looks only at the disqualifying trait or condition specific to the individual; if the "eligibility" requirements have been satisfied, the disqualification applies only to the person of the candidate, leaving the CoC valid. A previous conviction of subversion is the best example as it applies not to the citizenry at large, but only to the convicted individuals; a convict may have a valid CoC upon satisfying the eligibility requirements under Section 74 of the OEC, but shall nevertheless be disqualified.

While the violation of the three-term rule is properly a ground for disqualification, it is a unique ground, constitutionally anchored at that, that sets it apart from and creates a distinction even from the ordinary grounds of disqualification. The succeeding discussions incorporate these intra-disqualification distinctions on the grounds for disqualification, which in sum refer to (i) the period to file a petition and (ii) capability of substitution and (iii) on the application of the doctrine of rejection of second placer and the doctrine’s exceptions.

Distinctions among (i) denying due course to or
cancellation of a CoC, (ii) disqualification,
and (iii) quo warranto

The nature of the eligibility requirements for a local elective office and the disqualifications that may apply to candidates necessarily create distinctions on the remedies available, on the effects of lack of eligibility and on the application of disqualification. The remedies available are essentially: the cancellation of a CoC, disqualification from candidacy or from holding office, and quo warranto, which are distinct remedies with varying applicability and effects. For ease of presentation and understanding, their availability, grounds and effects are topically discussed below.

In the denial of due course to or cancellation of a CoC, the ground is essentially lack of eligibility under the pertinent constitutional and statutory provisions on qualifications or eligibility for public office;17 the governing provisions are Sections 78 and 69 of the OEC.18

In a disqualification case, as mentioned above, the grounds are traits, conditions, characteristics or acts of disqualification,19 individually applicable to a candidate, as provided under Sections 68 and 12 of B.P. Blg. 881; Section 40 of LGC 1991; and, as discussed below, Section 8, Article X of the Constitution. As previously discussed, the grounds for disqualification are different from, and have nothing to do with, a candidate’s CoC although they may result in disqualification from candidacy whose immediate effect upon finality before the elections is the same as a cancellation. If they are cited in a petition filed before the elections, they remain as disqualification grounds and carry effects that are distinctly peculiar to disqualification.

In a quo warranto petition, the grounds to oust an elected official from his office are ineligibility and disloyalty to the Republic of the Philippines. This is provided under Section 253 of the OEC and governed by the Rules of Court as to procedures. While quo warranto and cancellation share the same ineligibility grounds, they differ as to the time these grounds are cited. A cancellation case is brought before the elections, while a quo warranto is filed after and may still be filed even if a CoC cancellation case was not filed before elections.

The only difference between the two proceedings is that, under section 78, the qualifications for elective office are misrepresented in the certificate of candidacy and the proceedings must be initiated before the elections, whereas a petition for quo warranto under section 253 may be brought on the basis of two grounds - (1) ineligibility or (2) disloyalty to the Republic of the Philippines, and must be initiated within ten days after the proclamation of the election results. Under section 253, a candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he lacks any of the qualifications for elective office.20

Note that the question of what would constitute acts of disqualification – under Sections 68 and 12 of the OEC and Section 40 of LGC 1991 – is best resolved by directly referring to the provisions involved. On the other hand, what constitutes a violation of the three-term limit rule under the Constitution has been clarified in our case law.21 The approach is not as straight forward in a petition to deny due course to or cancel a CoC and also to a quo warranto petition, which similarly covers the ineligibility of a candidate/elected official. In Salcedo II v. COMELEC,22 we ruled that –

[I]n order to justify the cancellation of the certificate of candidacy under Section 78, it is essential that the false representation mentioned therein pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate — the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a "material representation," the Court has interpreted this phrase in a line of decisions applying Section 78 of the Code.

Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of the Code refer to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave — to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake. [emphases ours, citation omitted]

Thus, in addition to the failure to satisfy or comply with the eligibility requirements, a material misrepresentation must be present in a cancellation of CoC situation. The law apparently does not allow material divergence from the listed requirements to qualify for candidacy and enforces its edict by requiring positive representation of compliance under oath. Significantly, where disqualification is involved, the mere existence of a ground appears sufficient and a material representation assumes no relevance.

The period to file a petition to deny due course to or cancel a CoC depends on the provision of law invoked. If the petition is filed under Section 78 of the OEC, the petition must be filed within twenty-five (25) days from the filing of the CoC.23 However, if the petition is brought under Section 69 of the same law, the petition must be filed within five (5) days from the last day of filing the CoC.24

On the other hand, the period to file a disqualification case is at any time before the proclamation of a winning candidate, as provided in COMELEC Resolution No. 8696.25 The three-term limit disqualification, because of its unique characteristics, does not strictly follow this time limitation and is discussed at length below. At the very least, it should follow the temporal limitations of a quo warranto petition which must be filed within ten (10) days from proclamation.26 The constitutional nature of the violation, however, argues against the application of this time requirement; the rationale for the rule and the role of the Constitution in the country’s legal order dictate that a petition should be allowed while a consecutive fourth-termer is in office.

A candidate whose CoC was denied due course or cancelled is not considered a candidate at all. Note that the law fixes the period within which a CoC may be filed.27 After this period, generally no other person may join the election contest. A notable exception to this general rule is the rule on substitution. The application of the exception, however, presupposes a valid CoC. Unavoidably, a "candidate" whose CoC has been cancelled or denied due course cannot be substituted for lack of a CoC, to all intents and purposes.28 Similarly, a successful quo warranto suit results in the ouster of an already elected official from office; substitution, for obvious reasons, can no longer apply.

On the other hand, a candidate who was simply disqualified is merely prohibited from continuing as a candidate or from assuming or continuing to assume the functions of the office; substitution can thus take place under the terms of Section 77 of the OEC.29 However, a three-term candidate with a valid and subsisting CoC cannot be substituted if the basis of the substitution is his disqualification on account of his three-term limitation. Disqualification that is based on a breach of the three-term limit rule cannot be invoked as this disqualification can only take place after election where the three-term official emerged as winner. As in a quo warranto, any substitution is too late at this point.

As to the effects of a successful suit on
the right of the second placer in the elections:

In any of these three remedies, the doctrine of rejection of the second placer applies for the simple reason that –

To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances.30

With the disqualification of the winning candidate and the application of the doctrine of rejection of the second placer, the rules on succession under the law accordingly apply.

As an exceptional situation, however, the candidate with the second highest number of votes (second placer) may be validly proclaimed as the winner in the elections should the winning candidate be disqualified by final judgment before the elections, as clearly provided in Section 6 of R.A. No. 6646.31 The same effect obtains when the electorate is fully aware, in fact and in law and within the realm of notoriety, of the disqualification, yet they still voted for the disqualified candidate. In this situation, the electorate that cast the plurality of votes in favor of the notoriously disqualified candidate is simply deemed to have waived their right to vote.32

In a CoC cancellation proceeding, the law is silent on the legal effect of a judgment cancelling the CoC and does not also provide any temporal distinction. Given, however, the formal initiatory role a CoC plays and the standing it gives to a political aspirant, the cancellation of the CoC based on a finding of its invalidity effectively results in a vote for an inexistent "candidate" or for one who is deemed not to be in the ballot. Although legally a misnomer, the "second placer" should be proclaimed the winner as the candidate with the highest number of votes for the contested position. This same consequence should result if the cancellation case becomes final after elections, as the cancellation signifies non-candidacy from the very start, i.e., from before the elections.

I agree with the ponencia that the Comelec properly cancelled Hayudini’s CoC. It is apparent from the undisputed facts that Mustapha did indeed file a petition for denial and/or the cancellation of Hayudini’s CoC. It is also obvious, based on the above discussions, that the ground he cited was appropriate for the cancellation of Hayudini’s CoC. The main ground of the said petition is that Hayudini committed dishonesty in declaring that he was a registered voter of Barangay Bintawlan, South Ubian, Tawi-Tawi, when in fact he was not. As the Court held in Munder v. Commission on Elections,33 this ground is appropriate for a petition to deny due course or to cancel CoC, thus:

We agree with Munder as to the nature of the petition filed by Sarip. The main ground of the said petition is that Munder committed dishonesty in declaring that he was a registered voter of Barangay Rogero, Bubong, Lanao del Sur, when in fact he was not. This ground is appropriate for a Petition to Deny Due Course or to Cancel Certificate of Candidacy.

Amora v. Comelec is applicable to the present controversy. In that case, similar to the present one, a mayoralty candidate was disqualified by the Comelec pursuant to a Petition for Disqualification. The petition was filed by one of the candidates for councilor in the same municipality, on the ground that the CoC had not been properly sworn to. Amora won in the election, but was disqualified by the Comelec after he was proclaimed as mayor of Candijay, Bohol. One of the issues clarified in the said case was the distinction between a Petition for Disqualification and a Petition to Deny Due Course or to Cancel Certificate of Candidacy. The Court, in effect, held that the Comelec should have dismissed the petition outright, since it was premised on a wrong ground. A Petition for Disqualification has specific grounds different from those of a Petition to Deny Due Course to or to Cancel Certificate of Candidacy. The latter is anchored on the false representation by a candidate as to material information in the CoC.

For a petition for disqualification, the law expressly enumerates the grounds in Section 68 of Batas Pambansa Blg. 881 as amended, and which was replicated in Section 4(b) of Comelec Resolution No. 8696. The grounds stated by respondent in his Petition for Disqualification – that Munder was not qualified to run for not being a registered voter therein – was not included in the enumeration of the grounds for disqualification. The grounds in Section 68 may be categorized into two. First, those comprising "prohibited" acts of candidates; and second, the fact of their permanent residency in another country when that fact affects the residency requirement of a candidate according to the law.

In the earlier case of Fermin v. Comelec, the Court clarified the two remedies that may be availed of by a candidate to prevent another from running in an electoral race. The Court held:

To emphasize, a petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the [Omnibus Election Code], or Section 40 of the [Local Government Code]. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false. The petitions also have different effects. While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC.

In Fermin, the Court has debunked the interpretation that a petition for disqualification covers the absence of the substantive qualifications of a candidate (with the exception of the existence of the fact of the candidate's permanent residency abroad). It has, in effect, even struck down a Comelec Resolution - Resolution No. 7800, which enumerated the grounds for a petition for disqualification to include the non-registration of a candidate as voter in the locality where he or she is running as a candidate. In ruling as such, Resolution No. 7800 which was considered as infringement of the powers of the legislature, the Court reiterated an earlier ruling:

A COMELEC rule or resolution cannot supplant or vary the legislative enactments that distinguish the grounds for disqualification from those of ineligibility, and the appropriate proceedings to raise the said grounds. In other words, Rule 25 and COMELEC Resolution No. 7800 cannot supersede the dissimilar requirements of the law for the filing of a petition for disqualification under Section 68, and a petition for the denial of due course to or cancellation of CoC under Section 78 of the OEC.

Responding to the above ruling, the Comelec’s subsequent Resolution on the same matter deleted the enumerated grounds, interpreted by the Court as improper for a petition for disqualification, found in Comelec Resolution 7800.

It is thus clear that the ground invoked by Sarip in his Petition for Disqualification against Munder - the latter’s alleged status as unregistered voter in the municipality - was inappropriate for the said petition. The said ground should have been raised in a petition to cancel Munder’s CoC. [emphasis ours]

As mentioned above, considering that the cited ground is appropriate for cancellation of CoC case, it logically and necessarily follows that the question of who is the duly elected Mayor of South Ubian, Tawi-Tawi should be resolved under the rules of cancellation of CoC and not from the rules of disqualification proposed by Justice De Castro.

Justice De Castro espouses the view that Section 634 (on the effects of disqualification) in relation to Section 7 (on a petition to deny due course to or cancel a CoC)35 of RA 6646 should be applied in this case so that the permanent vacancy in the office of mayor of South Ubian (as a result of the cancellation of Hayudini’s CoC) should be filled pursuant to the rules of succession under Section 44 of the Local Government Code.

In Fermin v. Commission on Elections,36 the Court held that Section 7 cannot be construed to refer to Section 6 which does not provide for a procedure but for the effects of disqualification, but can only refer to the procedure provided in Section 5 of RA 6646 on nuisance candidates. The Court in Fermin cited Chief Justice Davide’s dissenting opinion in Aquino v. Commission on Elections,37 viz:

Second, even if we assume for the sake of argument that the petition in SPA No. 95-113 fall under Section 78 of the Omnibus Election Code, still Section 6 of R.A. No. 6646 cannot be applied by virtue of Section 7 thereof. Sections 6 and 7 reads:

Sec. 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. — The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.

The "procedure hereinabove provided" mentioned in Section 7 cannot be construed to refer to Section 6 which does not provide for a procedure but for the EFFECTS of disqualification cases. It can only refer to the procedure provided in Section 5 of the said Act on nuisance candidates which reads as follows:

Sec. 5. Procedure in Cases of Nuisance Candidates. — A verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 .f Batas Pambansa Blg. 881 shall be filed personally or through duly authorized representative with the Commission by any registered candidate for the same office within five (5) days from the last day for the filing of certificates of candidacy. Filing by mail shall not be allowed.

and which is the only procedure that precedes Section 7 of the said Act. Heretofore, no law provided for the procedure to govern cases under Section 78. Applying to such cases, through Section 7 of R.A. No. 6646, the procedure applicable to cases of nuisance candidates is prudent and wise, for both cases necessarily require that they be decided before the day of the election; hence, only summary proceedings thereon can adequately respond to the urgency of the matter.

Third, Section 6 merely supplements Section 72 of the Omnibus Election Code providing as follows:

Sec. 72. Effects of disqualification cases and priority. — The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought.

Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office.

by granting the COMELEC or the Court the authority to continue hearing the case and to suspend the proclamation if the evidence of guilt is strong. As observed by this Court in its majority "the phrase 'when the evidence of guilt is strong' seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code." [Emphases ours]

Based on these considerations, I find it clear that Section 6 of RA 6646 is only applicable to disqualification cases under Section 68 of the Omnibus election Code and not to cancellation of CoC cases under Section 78 of the same Code. At the risk of repetition, Section 7 cannot be construed to refer to Section 6 (which does not provide for a procedure but for the effects of disqualification), but can only refer to the procedure provided in Section 5 of RA 6646 on nuisance candidates. Thus, Justice De Castro’s conclusion that "the instruction in Section 7 in relation to Section 6 of RA 6646 is that, the effect/s of a disqualification case is made to apply to petitions to deny due course to or cancel CoCs" is wrong.

To be sure, the application of the effects of disqualification under Section 6 of RA 6646 in the present case would be tenable if the petition is one for disqualification. However, the pertinent allegations of Mustapha’s petition clearly show that the same is actually a petition for cancellation of CoC, the effect of which is not covered by Section 6 of RA 6646, which repealed Section 72 of the Omnibus Election Code cited above.

I emphasize that unlike a judgment on a petition to cancel a CoC, the effects of a judgment on a petition for disqualification distinguish whether the same attained finality before or after elections. If the judgment became final before the elections, the effect is identical to that of cancellation of a CoC. If, however, the judgment attained finality after the elections, the candidate is still considered an official candidate and may even be proclaimed the winner should he or she garner the majority votes in the elections. Clearly, these crucial distinctions between the effects of cancellation of a CoC and disqualification would be for naught if we adopt Justice De Castro’s view that Section 6 of RA 6646 should be made applicable to cancellation of CoC cases.

In the present case, Hayudini, whose CoC was denied due course or cancelled is not considered a candidate at all; the votes in his favor are considered votes for an inexistent candidate or for one who is deemed not to be in the ballot. The second placer (which is legally a misnomer), Salma should be proclaimed the winner as the candidate with the highest number of votes for the mayoralty post of South Ubian, Tawi-Tawi. That Hayudini’s CoC cancellation case became final after the elections is of no moment since the cancellation of his CoC retroacts to the date of the filing of the CoC; it signifies non-candidacy from the very start, i.e., from before the elections.