2nd Jan 2019

Politician Being Interviewed By Journalist During Election

Candidates for elective offices can be substituted. Pursuant to Section 77 of Batas Pambansa Bilang 881, otherwise known as the Omnibus Election Code, substitution of candidates is allowed only in cases of death, withdrawal or disqualification of the original candidate. In cases of death or disqualification, the substitute may file his Certificate of Candidacy up to mid-day of election day. However, in cases of withdrawal, the substitute can only file his Certificate of Candidacy within the period fixed by Comelec. As held in Federico vs. Comelec (G.R. No. 199612, 22 January 2013), the reason for the distinction can easily be divined. Unlike death or disqualification, withdrawal is voluntary. Generally, a candidate has sufficient time to ponder on his candidacy and to withdraw while the printing has not yet started. If a candidate withdraws after the printing, the name of the substitute candidate can no longer be accommodated in the ballot and a vote for the substitute will just be wasted. Consequently, a substitute (due to the withdrawal of the original candidate) who files his Certificate of Candidacy beyond the deadline fixed by Comelec, shall not be considered a valid candidate.

There are limitations to substitution. It is not allowed for independent candidates. However, despite lack of political affiliations, substitution is allowed for barangay candidates. (Rulloda vs. Comelec, G.R. No. 154198, 20 January 2003) Further, only a person belonging to and certified by the same political party of the original candidate can be a substitute. Even if the substitute only became a member of the same political party of the original candidate after the latter’s death, withdrawal or disqualification, the same is allowed and the substitution will be upheld. There is nothing in the Constitution or the statute which requires as a condition precedent that a substitute candidate must have been a member of the party concerned for a certain period of time before he can be nominated as such. (Sinaca vs. Mula, G.R. No. 135691, 27 September 1999) In addition, pursuant to Comelec Resolution No. 10430 (promulgated 01 October 2018), the substitute for a candidate who died or was disqualified by final judgement, may file a Certificate of Candidacy up to mid-day of election day provided that the substitute and the substituted have the same surnames.

In Luna vs. Comelec (G.R. No. 165983, 24 April 2007), the Supreme Court struck down the order of Comelec in invalidating the substitution done grounded on the withdrawal by the original candidate for the latter’s failure to meet the age requirement. In the absence of a petition to deny due course or cancel the Certificate of Candidacy, the Comelec cannot declare the original candidate, being under age, to not have filed a valid certificate of candidacy and thus could not be substituted. In such case, the Supreme Court upheld the substitution.

In case of valid substitutions, votes cast for substituted candidates are considered stray, except if the substitute candidate has the same surname. It must be borne in mind that if a person’s Certificate of Candidacy has been denied due course and/or cancelled pursuant to Section 78 of the Omnibus Election Code, he cannot be validly substituted since a person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all. (Tagolino vs. HRET, G.R. No. 202202, 19 March 2013) 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.

Finally, the filing of a withdrawal shall not affect the civil, criminal or administrative liabilities the substituted candidate may have already incurred.

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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