Power to declare ‘nuisance’ bets disputed

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The Comelec has no power to declare as “nuisance candidates” in the May 2016 elections those candidates who, for the first time, failed to file statement of contributions and expenses (SOCE) in 2013 elections or failed to pay the fines it imposed, according to an election lawyer.

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These candidates being able to run in the 2013 polls is evident enough that they could not be treated as nuisance candidates, Romulo Macalintal said in a statement on Monday.

“Their alleged failure to file the SOCE or failure to pay the imposed fines is not included in the definition of ‘nuisance candidates’ under Section 69 of the Omnibus Election Code [OEC] in that their certificate of candidacy “has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of names of other candidates or no bona fide intention to run for the office,” he added.

Under paragraph 4, Section 14 of Republic Act (RA) 7166, the Comelec may only impose a fine ranging from P10,000 to P30,000 to candidates who, for the first time, failed to file their SOCE and if the fine is not paid, the Comelec may issue a “writ of execution against the properties of the offender,” Macalintal said.

“The Comelec cannot add to nor deduct from what is provided for by the law. It may find some gaps in the law but it is not for Comelec to supply the gaps since its function is not legislative. It is only Congress that could amend such law. If at all, the Comelec should blame Congress for repealing the provision of the OEC imposing imprisonment and perpetual disqualification from holding public office upon any candidate who failed to file his SOCE,” he added.

There is nothing in the law, according to Macalintal, which says the Comelec can file a motion to declare one as a “nuisance candidate” because in such an eventuality, the Comelec might be performing the unconstitutional function of being the complainant, prosecutor and judge rolled into one. (Barican vs Comelec, June 18, 1992, Minute Resolution).

The power of the Comelec or right of any “interested party” to file such petition under Section 69 of the OEC, he said, was superseded by Section 5 of RA 6646, which now limits the filing of petition to declare a candidate as “nuisance candidate” to “any registered candidate for the same office.”

At present, under paragraph 7, Section 14 of RA 7166, Macalintal added, only by the commission of a second or subsequent offense of failure to file SOCE or pay the fine thereof where the offending candidate shall be subject to perpetual disqualification to hold public office in addition to the fine to be imposed by the Comelec.

“It is in this case where the Comelec could motu propio or on its own disqualify such second-offender candidate by virtue of its constitutional duty to ‘enforce and administer all laws’ where it can bar from running for public office those suffering from perpetual special disqualification as held by the Supreme Court in Jalosjos vs Comelec on October 9, 2012,” he said.

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