The Commission on Elections (Comelec) is giving high priority to the issue of the validity of the substitution of former PDP-Laban presidential candidate Martin Diño by Davao City Mayor Rodrigo Duterte.
The PDP-Laban on Monday proclaimed Duterte as its official standard-bearer, replacing Diño, who earlier withdrew his certificate of candidacy (COC) for President to pave the way for the mayor’s inclusion in next year’s race to Malacañang.
Under the Comelec’s schedule, the deadline set for the substitution of candidates is December 10, giving the poll body five days to produce a final list of official candidates by December 15.
“So, five days. The commission has to work extra hard to finish [it by then], otherwise we will have disruption to our timeline,” Commissioner Christian Robert Lim said when asked when they plan to make a ruling on Duterte and Diño’s case.
Duterte last Friday withdrew his candidacy for reelection as mayor and filed his COC for President as a substitute candidate under PDP-Laban.
Diño earlier withdrew his COC after the Comelec asked him to explain why he should not be declared a nuisance candidate after the poll body found errors in the document he filed on October 16, the last day of filing of the COCs.
Comelec Chairman Andres Bautista said they must decide on the Duterte-Diño move, adding that there were gray areas that needed to be studied.
“We need to look closely into the COC of Diño. The form was for the position of President but what he wrote on the position he is running for was for mayor of Pasay City [Metro Manila]. There’s something ,” according to Bautista.
Lim explained that the nuisance issue would have to go to the Comelec law division, and thereafter, to the en banc.
In the case of Duterte, it is the en banc that has to act.
“As to the approval of the substitution, it has to be [given]by the en banc. This is an exercise of the administrative powers of the Comelec, not quasi judicial,” Lim said. “All substitutions are elevated to the en banc for approval.”
Duterte, through lawyer Salvador Medialdea, filed his COC for President on Friday, Nov. 27, before the Comelec law division.
On the same day, a certain Ruben Castor, through lawyers Oliver Lozano and Evangeline Lozano Endriano, also filed a petition seeking to nullify the Davao City mayor’s COC.
Castor argued that Diño’s COC was defective and, therefore, void because it contained several material misrepresentations, in violation of the mandatory provision of the law, or Article 5 of the Civil Code, and also Section 74 of the Omnibus Election Code.
He pointed out that Duterte, although a member of the PDP-Laban, was not nominated by the party for mayor of Davao but by Hugpong sa Tawong Lungsod, a local political party.
The process of substitution requires Duterte to withdraw his COC for mayor of Davao City, take his oath as member of the PDP-Laban and submit a CONA or certificate of nomination and acceptance from his party – with which the mayor has complied.
Substitution is allowed under Article IX, Section 77 of the Omnibus Election Code.
The article states, “If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified.”
Earlier, election law expert Romulo Macalintal doubted if Duterte could run legally in such manner, seeing his COC for President as being defective and that the Comelec might declare him a nuisance candidate.
But former Comelec chairman Sixto Brillantes Jr. disagreed, saying there is no legal impediment to Duterte’s move to join the 2016 presidential race.
Brillantes explained that one is allowed to run as a substitute candidate if a candidate dies, is disqualified or withdraws, and Duterte’s case fits one of such conditions on the ground of the previous candidate’s withdrawal.
He said the error in Dino’s COC was a non-issue because it was clear that the form was for President and was recognized as such by the Comelec.
Brillantes said the Comelec may no longer declare Diño a nuisance candidate because “he has already withdrawn his certificate of candidacy” and thus, is no longer a candidate.
“So how can you declare a non-candidate a nuisance candidate?” he added. “It’s already moot and academic.”