2nd Jan 2019

petition deny due course

The information provided by a candidate in his Certificate of Candidacy (COC) cannot be taken lightly. Should a candidate make false statements of a material representation in the COC, his COC may be cancelled or denied due course. Section 78 of Batas Pambansa Bilang 881, otherwise known as the Omnibus Election Code, provides the remedy of filing a verified petition to deny due course or to cancel a COC on the ground that any material representation contained in the COC is false. 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. (Tagolino vs. HRET, G.R. No. 202202, 19 March 2013)

It must be emphasized that not all matters stated in the COC are considered material to warrant the invocation of a Section 78 petition. The material misrepresentation referred to in Section 78 of the Omnibus Election Code pertains to qualifications for elective office. The misrepresentation must be material, i.e. misrepresentation regarding age, residence and citizenship or non-possession of natural-born Filipino status. (Gonzalez vs. Comelec, G.R. No. 192856, 8 March 2011). Thus, the COC of a former Filipino citizen who failed to reacquire her Filipino citizenship under Republic Act 9225 can be cancelled for failure to meet the citizenship and residency requirements. (Ongsiako Reyes vs. Comelec, G.R. No. 207264) Similarly, the candidate’s status as a registered voter falls under this classification as it is a legal requirement which must be reflected in the COC. (Hayudini vs. Comelec, G.R. No. 207900, 12 April 2014). Furthermore, as held in Talaga vs. Comelec (G.R. No. 196804, 9 October 2012), violation of the three-term limit by a local official candidate can be questioned by filing a petition to deny due course or cancel COC.

On the other hand, statements that do not refer to the qualifications of a candidate cannot warrant the invocation of Section 78. Wrong entries as to the profession of a candidate is not considered a valid ground to cancel a COC. Thus, a declaration by a candidate for punong barangay in his COC that he was a Certified Public Accountant, but in fact was not, is NOT a ground to cancel the COC because profession is not a qualification for elective office and therefore not a material fact. (Lluz v. Comelec, 523 SCRA 456.) Further, the use of a name other than that stated in the certificate of birth is not a material misrepresentation. (Villafuerte vs. Comelec, G.R. No. 206698, 25 February 2014).

Aside from the requirement of materiality, a false representation under Section 78 must consist of a “deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible.” In other words, it must be made with an intention to deceive the electorate as to one’s qualifications for public office. The use of surname, when not intended to mislead, or deceive the public as to one’s identity is not within the scope of the provision. (Villafuerte vs. Comelec, G.R. No. 206698, 25 February 2014).

The petition to deny due course or cancel COC must be filed within five days from the last day of the filing of the COC, but not later than 25 days from the filing thereof. It must be lodged with the Comelec in division. (Ibrahim vs. Comelec, G.R. No. 192289, 08 January 2013). However, when the ground for the petition to deny due course or cancel COC is based on a candidate’s final conviction of a crime, Comelec en banc may assume jurisdiction since it is subsumed under the Comelec’s mandate duty to enforce and administer election laws in cancelling the COC on the basis of the candidate’s perpetual absolute disqualification, the fact of which had already been established by his final conviction. As this pertains to the Comelec’s administrative functions, Comelec en banc will exercise jurisdiction over the said petition. (Jalosjos vs. Comelec, G.R. No. 205033, 18 June 2013)

The person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he never filed a COC. (Munder vs. Comelec, G.R. No. 194076, 19 October 2011). It should be clear, too, that a candidate who does not file a valid COC may not be validly substituted, because a person without a valid COC is not considered a candidate in much the same way as any person who has not filed a CoC is not at all a candidate. (Miranda v. Abaya, G.R. No. 136351, 28 July 1999) A cancelled certificate of candidacy void ab initio cannot give rise to a valid candidacy, and much less to valid votes. (Tea vs. Comelec, G.R. No. 195229, 9 October 2012) Therefore, votes cast in favor of a candidate whose COC was cancelled either before or after the elections, are considered as stray votes. Being stray votes, should the candidate whose COC was cancelled garner the highest number of votes, he cannot be proclaimed as the winner. It shall be the candidate who garnered the second highest number of votes who will be declared victorious.

Nicolas & De Vega Law Offices is a full-service law firm in the Philippines. You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines. You may also call us at +632 4706126, +632 4706130, +632 4016392 or e-mail us at info@ndvlaw.com . Visit our website www.ndvlaw.com .

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