Supreme Court's 9-6 ruling keeps De Lima in jail

(5th UPDATE) The High Court rules the Sandiganbayan has no jurisdiction over De Lima. This means her case will not be handled by the Office of the Ombudsman, but by DOJ prosecutors who will defend their case against her before the Muntinlupa RTC.

MANILA, Philippines (5th UPDATE) – Voting 9-6, the Supreme Court (SC) en banc on Tuesday, October 10, junked the petition of Senator Leila de Lima, saying it is the Muntinlupa Regional Trial Court (RTC), rather than the anti-graft court Sandiganbayan, that has jurisdiction over the drug trade cases filed against her.

De Lima will remain in jail at the custodial center in Camp Crame.

SC Spokesman Theodore Te confirmed the ruling in a press conference on Tuesday.
De Lima petitioned the High Court to nullify the warrant of arrest issued against her by RTC Judge Juanita Guerrero, citing lack of jurisdiction. Included in her petition was a plea to the SC to stop Guerrero from conducting further proceedings on her drug case.
De Lima’s petition, in essence, wanted the SC to rule that the Department of Justice (DOJ) and RTC don’t have jurisdiction over her cases so that they can be dismissed and she can be set free.

In dismissing the senator's petition, the SC gave the 3 RTC branches of Muntinlupa handling her cases the go-signal to continue with their proceedings. (READ: EXPLAINER: Issues on jurisdiction in De Lima cases)

The 6 justices who voted for De Lima are Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio, Associate Justices Estela Perlas-Bernabe, Francis Jardeleza, Marvic Leonen, and Benjamin Caguioa.

The 9 justices who voted against De Lima are Associate Justices Presbitero Velasco Jr, Teresita Leonardo-De Castro, Diosdado Peralta, Lucas Bersamin, Mariano Del Castillo, Samuel Martires, Noel Tijam, Andres Reyes, and Alexander Gesmundo.

De Castro, Peralta, Martires and Gesmundo were all justices of the Sandiganbayan before their appointments to the SC. They ruled that the Sandiganbayan has no jurisdiction over De Lima.

The SC decision means that De Lima's case will not be handled by the Office of the Ombudsman, but by the DOJ state prosecutors who will prove their case against De Lima before the Muntinlupa RTC.

So far, Branches 204 and 205 have issued arrest warrants. The one issued in February by Branch 204 Judge Guerrero was the subject of De Lima's petition, saying the judge committed grave abuse of discretion.

The SC decision marks another episode in the battle of De Lima, staunchest critic of President Rodrigo Duterte. (READ: De Lima in jail: 'I never imagined Duterte would be this vindictive')

One of De Lima's counsels, former solicitor general Florin Hilbay, said that the ruling affects DOJ prosecutors who are the “most worried” and who will “now have to establish a case without evidence.”

Hilbay said on Twitter: “The path to justice for Leila De Lima is a steep incline, but her strong heart & unconquerable spirit will persist till justice is done.”

Solicitor General Jose Calida said the ruling only proves that Duterte’s war on drugs is not a war against the poor.

“The decision further negates the erroneous perception that the government’s war on drugs is waged only against the unlettered and the underprivileged,” Calida said in a statement.

Ruling
The SC sided with Calida’s argument that under the Dangerous Drugs Act, it is the RTC which has sole jurisdiction to try the charges under that law.

“The Court did not agree with petitioner’s characterization of the offense as Direct Bribery under the Revised Penal Code but maintained that the Information are sufficient to characterize the offense as a violation of the Dangerous Drugs Act,” the SC said in a summary sent by Te.
De Lima’s camp had insisted that she falls under the jurisdiction of the Sandiganbayan because she falls under the classification of a public official with Salary Grade 27 and higher, and that the alleged offense was committed in relation to her office.
The SC did not agree, saying, “The Sandiganbayan’s jurisdiction is limited to violations of the anti-graft laws and [does] not extend to violations of the drugs law.”
The Sandiganbayan, however, handles other cases of public officials apart from graft. In the case of the "Morong 43", for example, police and soldiers are accused of violating the rights of arrested or detained persons.

The SC also ruled that Judge Guerrero did not commit grave abuse of discretion in ordering De Lima’s arrest before resolving the Senator’s motion to quash. Judge Guerrero was just complying with the Rules of Court, which impose a 10-day period to evaluate evidence upon filing of charges, the High Court said.

The SC also said De Lima “violated the rule on hierarchy of courts and the prohibition against forum shopping.”

The SC also gave merit to Calida's argument that De Lima falsified the jurat or notarization of her pleading.

"The Court also found that the petition was not properly executed under oath and that the jurat (certification) was defective for not having subscribed to the same in the presence of the notary public," the SC said.

Criticized by the De Lima camp then as "legal nitpicking and hairsplitting," they admitted that the notarization was not done face to face. They said De Lima met with the notary public on the day of her arrest, but due to the circumstances, could not be in the presence of the lawyer when it was officially signed, also on the same day.

The ponente of the case is Justice Velasco, whose inhibition from the case De Lima sought, citing conflict of interest. It is unclear whether the en banc also resolved De Lima’s motion for inhibition, but Velasco had already voted against the senator.
Arrest
De Lima was arrested late February for allegedly receiving money from drug convicts inside Bilibid in exchange for their protection. The money, the convicts said, was intended to fund De Lima's senatorial bid in 2016. (READ: EXPLAINER: What is Leila de Lima being accused of?)

It was the conclusion of a series of sensational congressional inquiries where Bilibid convicts pointed to De Lima, as having been complicit in the proliferation of the drug trade inside the jails.

A panel of prosecutors from the Department of Justice (DOJ) handled the complaints, despite De Lima's contention that it is the Ombudsman who has jurisdiction over her.
De Lima first sought relief from the Court of Appeals but the CA refused to give her a Temporary Restraining Order (TRO). A week after, the DOJ proceeded to file the charges before the Muntinlupa RTC.

The DOJ also cleared 5 high-profile convicts in the De Lima cases, in order to use them as witnesses against the senator.

De Lima immediately filed a motion to quash. In her petition, De Lima said Judge Guerrero committed grave abuse of discretion because she issued a warrant of arrest without ruling on the motion to quash first.

The SC heard the De Lima petitions in 3 days of oral arguments in March. Hilbay argued for De Lima, while Calida argued for the government.

source:  Rappler

EXPLAINER: Issues on jurisdiction in De Lima cases

MANILA, Philippines – The main contention over the charges against Senator Leila de Lima is whether the Department of Justice (DOJ) as investigating body and the Muntinlupa Regional Trial Court (RTC) have jurisdiction.

This is what De Lima’s petition before the Supreme Court (SC) is all about – to dismiss the charges against her for lack of jurisdiction. In her petition, De Lima’s lawyers cited the pronouncement of Muntinlupa RTC Branch 204 Judge Juanita Guerrero during a hearing that she does not have jurisdiction over the detained senator yet.

"I have no jurisdiction yet over the persons of the accused, right? So how can I rule on your motion to quash?" said Guerrero, based on the official transcript of the hearing on February 24, the day De Lima was arrested and her camp filed a motion to quash before the same court.

2 kinds of jurisdiction

There are two kinds of jurisdiction: jurisdiction over the person and jurisdiction over the offense.

During the first round of oral arguments at the SC on March 14, former solicitor general Florin Hilbay, lead oralist for the De Lima camp, asserted that according to the Sandiganbayan Act of 2014, it is the anti-graft court which shall have the jurisdiction to try an appointed official like De Lima, who was justice secretary when she allegedly committed the crime. (READ: Hilbay: OSG case vs De Lima different from drug charges)

Hilbay said De Lima belongs to this category under the law: "Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher."

In his interpellation, Justice Diosdado Peralta pointed out the difference between the two kinds of jurisdiction, and said that the Sandiganbayan Act only has jurisdiction over De Lima as an accused.

“I think the Sandiganbayan law refers to jurisdiction over the accused. If you look at paragraph A and paragraph B, the Sandiganbayan has jurisdiction over the following: those who have salary grade of 27, and those who occupy the following positions. In paragraph B, it says: those who belong to category...those who receive salary grade 27 as provided by paragraph A in relation to office. It’s not actually jurisdiction over the offense, but jurisdiction over the person or the accused," Peralta said in a mix of English and Filipino.

“The Sandiganbayan law...there was an obvious legislative intent to cover as much ground as possible when you talk about offenses committed by public officials in relation to their office, that's why exclusive, original, that's why it says all, and then you have specification of the crimes, and then you have a catch all provision, all other offenses and felonies in relation to their office, that exhausts all possibilities, your honor,” Hilbay answered.

Is the crime related to office?

Peralta’s interpellation shifted to whether De Lima's alleged crime is related to her office then, the Department of Justice. 

Peralta used the example of Senator Panfilo “Ping” Lacson who was then accused, along with other policemen, of killing suspected members of the Kuratong Baleleng robbery gang. Lacson was then police chief superintendent and head of the Presidential Anti-Organized Crime Task Force (PAOCTF).

“The court says the RTC has jurisdiction over the crime of murder, although those who died allegedly were killed while the PNP officials were performing their duty, and there was an allegation of in relation to their office,” Peralta said.

Hilbay said De Lima could not be likened to Lacson in that case because the latter could still have committed the crime even if he wasn’t the police chief.

“The police officers who were accused in that case could have performed or done what they did without even having to pretend that they were public officials. in that case, they simply used their position as a cloak to perform what is otherwise murder. [In De Lima’s case] the allegations say the money was given for protection so that she can run for public office, they would not have allegedly given her money because they supported her campaign, she extorted, and the only way she could have extorted was because she was the secretary of justice,” Hilbay said.

Corruption charge or drug charge?

Justice Lucas Bersamin reminded Hilbay that to prove the Sandiganbayan has jurisdiction, he has to cite the specific contents in the 3 informations filed against De Lima that would say so. (READ: Explainer: What is Leila de Lima being accused of?)

Hilbay mentioned two phrases:

1. “By taking advantage of their position…”

2. “With the use of their power, position and authority, demand, solicit and extort money…”

Echoing the argument of Solicitor General Jose Calida, Bersamin cited Section 28 of the Comprehensive Dangerous Drugs Act which states that any government official found guilty of violating the law shall be held criminally liable with the maximum penalties provided for by the said law.

“This is hypothetical theory – if one is charged, a govenrment official is charged under these portions of the law on drugs, would you have these government officials charged and tried with the Sandiganbayan?” Bersamin asked Hilbay.

Hilbay said, “The basic question is whether or not this is a corruption charge or a real drug trade charge.”

In arguing his position, Hilbay said that the informations do not accuse De Lima of drug trade but of corruption.

“It wasn’t as if she talked to an inmate and said, 'I want to become part of the trade, I want to become part of the business, I want to enter into contract in the sale of drugs, now I’ll give you cellphone so you can do that.' No, she did not do that, as per the allegation, she was interested in running for the Senate, she needed money, and therefore she demanded and solicited. That is corruption,” Hilbay said. (READ: Leonen: De Lima relief from SC may set precedent)

Calida’s arguments

In his argument on jurisdiction, Calida cited Section 39 of RA 6425 or the Dangerous Drugs Act of 1972, which stated that the “circuit criminal court shall have exclusive original jurisdiction over all cases involving offenses punishable under this act.”

He also cited the Judiciary Act of 1948 which says that the courts of first instance shall have original jurisdiction in all criminal cases in which the penalty is imprisonment for more than 6 months or a fine of more than P200.

The circuit criminal court and the court of first instance are what we now know as the RTC.

Calida also cited Section 90 of RA 9165 or the Comprehensive Dangerous Drugs Act of 2002, which says the “Supreme Court shall designate special courts from among the existing regional trial courts in each judicial region to exclusively try and hear cases involving violations of this act.”

Peralta used the same provision when he interpellated Hilbay.

“That is clear – the Supreme Court shall designate RTC as special court; that is the law. The law does not say the SC shall likewise designate MTC courts to try drug cases; that’s specific, it’s actually a directive to us,” Peralta said.

Hilbay argued that the power of the SC was only administrative, and that the determining law shall still be the Sandiganbayan law.

“If it happens that the RTC has jurisdiction, that’s only when Section 90 would kick in because that grants the SC the power to administratively designate RTCs that have jurisdiction to act exclusively on drugs cases,” Hilbay said.

Hilbay reiterated during round one of the oral arguments that even if there are disagreements due to different laws, the Sandiganbayan law shall prevail because it is the latest among the laws.

Calida has promised to throw “knock-out” punches when it’s his turn to argue before the SC.

Ahead of turn, however, Calida made public last week his manifestation that De Lima’s petitions should be dismissed by the High Court because she falsified the notarization on her affidavits.

Citing logbooks and testimonies from security officers at the Philippine National Police (PNP) Custodial Center, Calida said there was no evidence that De Lima personally appeared and swore before the notarizing lawyer, Maria Cecile C. Tresvalles-Cabalo, in relation to her affidavits on February 24, the day the senator was detained at Camp Crame.

De Lima’s lawyer, Alexander Padilla, said the execution of the affidavits happened at the headquarters of the Criminal Investigation and Detection Group (CIDG) where De Lima spent a couple of hours before she was taken to her detention cell.

The second round of the oral arguments will begin at 2 pm on Tuesday, March 21. – 

Rappler.com

Can Comelec probe Marcos donation to Duterte?

MANILA, Philippines – The Commission on Elections (Comelec) on Wednesday, October 12, said it needs a formal complaint before it can investigate the reported campaign donation of Ilocos Norte Governor Imee Marcos to then presidential bet Rodrigo Duterte.

Marcos' reported donation was not included in Duterte's Statement of Contributions and Expenditures (SOCE) – a possible violation of Comelec rules.

Comelec Spokesman James Jimenez, however, said the poll body cannot initiate an investigation motu proprio, or on its own, based only on the President's statement that Marcos contributed to his campaign.

"The Comelec cannot act unless a formal complaint has been lodged," Jimenez told Rappler.

"Whoever is interested can file a complaint," he added.

Duterte brought up Marcos' name as a a contributor during a speech on October 4. He said hardly anyone supported him at first, except for people like Marcos.

"Wala akong barangay captain, wala akong congressman, wala akong pera. Si Imee pa ang nagbigay. Sabi niya inutang daw niya," the President said.

(I didn't have a barangay captain, I didn't have a congressman, I didn't have money. It was Imee who donated. She said she borrowed money for it.)

'Many uncertainties'

In his interview with Rappler, Jimenez explained that Duterte's statement "is really not enough to initiate" a motu proprio investigation.

After all, he said Duterte's remarks involve "many uncertainties" – among these, the possibility that the President "misspoke."

Duterte's statements, however, can be part of a formal complaint to initiate a Comelec probe.

Under its rules, the poll body considers incomplete SOCEs as "not filed."

Failing to file the SOCE, in turn, bars winning candidates from taking office.

It is unclear how this applies to winning candidates, such as Duterte, who have already taken their oaths of office.

Candidates who fail to file their SOCEs also face penalties ranging from P1,000 to P30,000 ($20.58 to $617.60).

The SOCE is a way for the Comelec monitor if a candidate overspent during the campaign, and for watchdogs to identify the donors to whom a candidate might be indebted once in office. – Rappler.com

Marcos could be new VP – Duterte

FORMER senator Ferdinand “Bongbong” Marcos Jr. may become the country’s next vice president if he wins his electoral protest against Vice President Maria Leonor “Leni” Robredo, President Rodrigo Duterte said Wednesday night in Beijing.

The President made the remark as he introduced Marcos during his meeting with the Filipino community in Beijing.

Marcos and his sister, Ilocos Norte Gov. Imee Marcos, joined the President’s state visit to China and were on stage when Duterte spoke.

“Si Bongbong … Kung manalo siya sa protest niya baka bago ang ating bise presidente [Bongbong … If he wins in his election protest, maybe we will have a new vice president],” Duterte said.

Marcos is contesting the narrow victory of Robredo in the May 9 vice presidential race, claiming massive electoral fraud, counting anomalies and other irregularities.

Robredo won with 14,682,290 votes against Marcos’ 14,418,817 votes, or a difference of only 263,473.
Duterte, citing his close ties with the Marcoses, initially declined to give Robredo a Cabinet position. He later named her housing czar.

Another rival of Marcos in the vice presidential contest, Sen. Alan Peter Cayetano, was also present in the Filipino community event.

Introducing Cayetano to the audience, Duterte described his former vice presidential candidate as “bright.”
Both Marcos and Cayetano sought to run under the Duterte ticket, but the latter got the nod of the former Davao City mayor. Marcos instead ran with the late senator Miriam Defensor-Santiago.

Marcos camp hits Comelec

On Thursday, the Marcos camp said it would ask the Supreme Court, sitting as the Presidential Electoral Tribunal or PET, to stop the Commission on Elections (Comelec) from releasing supposedly unused vote-counting machines to its foreign service provider Smartmatic.

The move, the Marcos camp said, would violate a precautionary protective order issued by the tribunal to preserve election records and equipment.

“Senator Marcos is vehemently opposing the plan of Comelec to return the 1,356 [machines]to Smartmatic for the simple reason that there is no approval from the PET in the light of the [order]it earlier issued,” said
Marcos counsel Jose Amor Amorado during a Comelec briefing at the poll body’s Santa Rosa, Laguna warehouse that discussed the protocol on the release of the counting machines to Smartmatic.

The Marcos camp insists that the protective order covers the machines, despite the Comelec’s claim that they were not used during the May polls. The machines are scheduled to be released starting October 26.

“These contingency machines were used during the last elections as contingency [machines]. Some of them were deployed admittedly during the earlier meetings in different areas. Some of them were left here in Santa Rosa. So because of the lack of PET approval, the plan of Comelec to return the [machines]to Smartmatic is vehemently opposed,” Amorado said.

The PET had ordered the preservation of automated election equipment such as counting machines, consolidation and canvass system units, secure digital cards, and other data storage devices in all 92,509 clustered precincts used in the May 2016 elections.

source:  Manila Times

Comelec junks protest vs Makati Mayor Abby Binay

MANILA, Philippines – The Commission on Elections (Comelec) has junked the election protest filed by defeated mayoral bet Romulo "Kid" Peña Jr against Makati City Mayor Abigail "Abby" Binay Campos.

Peña, former acting mayor of Makati City, alleged electoral fraud and vote buying to favor his rival, Binay, in the mayoral race.

In an order dated September 20, however, the Comelec First Division said Peña "failed to indicate a detailed specification of the acts or omissions complained of showing the electoral fraud, anomalies, or irregularities in the protested precincts."

For one, the Comelec First Division said, Peña "did not indicate the particular precincts" where vote-counting machines wrongly scanned the ballots.

On top of this, Peña's use "of phrases like 'numerous instances,' 'in some instances,' 'in one instance,' etc, reflects that these statements of irregularities are broad and general in description, which the rules do not allow."

The Comelec First Division explained, "The rule on specificity of the acts or omissions detailing electoral fraud or irregularity is purposely crafted to prevent the tendency of prolonging or delaying election protests, which casts doubt on the validity of the proclamation of the elected officials."

"The protestant did not show the required specific cause why this election protest must continue," the poll commissioners added.

'Unnecessary delay'

At the same time, the Comelec First Division chastised Peña for filing two versions of the same protest.

"The Comelec (First Division) sternly reminds the protestant that this incident, whether intentional or not, has caused the unnecessary delay in the resolution of the case," they said.

The Comelec First Division is composed of Commissioner Christian Robert Lim, as the presiding commissioner, and Commissioners Luie Guia and Rowena Guanzon as members.

In a statement on Friday, September 23, Binay lawyer Daniel Subido said the Makati City mayor is thanking the Comelec "for seeing the protest filed by Peña for what it is, a sham pleading filed by a losing candidate who could not accept the reality of being soundly rejected by the Makati citizenry."

Peña lost by 18,000 votes to Binay, heir to the political dynasty built by her father, former vice president Jejomar Binay, in Makati City.

Peña served as Makati City acting mayor in 2015 after the Ombudsman suspended then Makati mayor Jejomar Erwin Binay Jr.

Binay Jr is the incumbent mayor's brother. – Rappler.com

Counting terms: Jurisprudential guidelines on the three-term limit rule for local elective officials

The euphoria of the 2016 elections may have died down but some legal issues are yet to be resolved by the courts and the Comelec. A number of these cases may relate to the proper interpretation of the “three-term limit rule” for local elective officials.

This disqualification rule, as enshrined under Section 8, Article X of the 1987 Constitution and reiterated in Sec. 43 (b) of the Local Government Code of 1991, prohibits local elective officials from serving more than three (3) consecutive terms in the same position. It ensures that there is a change in leadership every after three consecutive terms of a local elective official to give chance to some other qualified individuals. Although the rule appears to be simple, the same has been a fertile ground for disputes stemming from varying interpretations of said rule.

In Abundo v. Comelec (2012), the Supreme Court laid down the following requisites for the applicability of the rule: (1) that the official concerned has been elected for three consecutive terms in the same local government post; and (2) that he has fully served three consecutive terms.

The Abundo ruling likewise summarized various cases where the applicability of this rule was tested. These cases relate to: (1) assumption of office by operation of law, (2) assumption of office after winning a recall election, (3) conversion of a municipality to a city, and (4) declaration of the proclaimed candidate as the losing party in an election contest, and other analogous cases.

ASSUMPTION OF OFFICE BY OPERATION OF LAW
In Borja, Jr. v. Comelec (1998), Capco was elected vice-mayor but he eventually succeeded as mayor by operation of law due to the death of the incumbent mayor. Capco was then elected as mayor for two more terms after his assumption by operation of law. On his third attempt to re-election, his disqualification was sought. The Supreme Court held that “it is not enough that an individual served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply.” Thus, the initial assumption by operation of law was not counted for purposes of the three-term limit rule.

ASSUMPTION OF OFFICE AFTER WINNING IN A RECALL ELECTION
In Socrates v. Comelec (2002), Hagedorn was elected and served as mayor for three consecutive terms. After that Hagedorn opted not to run for the next elections, in which Socrates eventually won. However, while serving his term, Socrates faced recall proceedings. Hagedorn ran for the former’s unexpired term, so Socrates sought his disqualification. The Supreme Court upheld Hagedorn’s candidacy to run in the recall election, since after his third term “he became a private citizen until the recall election” where he won.

CONVERSION OF A MUNICIPALITY INTO A CITY
In Latasa v. Comelec (2003), Latasa served as Mayor of the Municipality of Digos for three consecutive terms. During his third term, Digos was converted to a component city. When he filed his candidacy for city mayor, the Supreme Court ruled that “the conversion of a municipality to a city does not constitute an interruption of the incumbent official’s continuity of service.” Thus, the rule was applied.

LOSING IN AN ELECTION CONTEST
In Lonzanida v. Comelec (1999), Lonzanida was elected and served as mayor for three terms from 1989-1998. However, his proclamation relative to the 1995 election (for his 3rd term) was declared as null on the ground of failure of elections. Three months before the 1998 elections, Lonzanida vacated the mayoralty post. In the May 1998 elections, Lonzanida again filed his certificate of candidacy. This was questioned by his opponent.

The Supreme Court held that “Lonzanida cannot be considered as having been duly elected to the post in the May 1995 elections since his assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation.” It was also stated that “Lonzanida did not fully serve the 1995-1998 mayoral term having been ordered to vacate his post before the expiration of the term, a situation which amounts to an involuntary relinquishment of office.” Thus, the rule did not apply.

Contrast this to Ong v. Alegre (2006), Ong was elected and served as mayor for three terms from 1995-2004. During the 1998 elections, the Comelec nullified Ong’s proclamation on account that he lost during the 1998 elections. Nonetheless, the decision became final and executory on July 4, 2001 when Ong had fully served the 1998-2001 term and was in fact already starting to serve the 2001-2004 term. In 2004, he filed his certificate of candidacy for the same position which his opponent questioned. Ong invoked the ruling in Lonzanida.

The Supreme Court held that “his assumption of office as mayor for the term 1998-2001 constitutes service for the full term.”Lonzanida did not apply because the conditions are different. Ong was deemed to have served for a full term because Ong’s proclamation was voided only after the expiry of the term. It was further noted that “the decision declaring Ong as not having won the 1998 elections was without practical and legal use and value.” “His proclamation as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term limit rule.”

Based on the foregoing, the rule is applicable for as long as a local elective official (1) has been elected and (2) had served for three consecutive terms in the same position. As such, an official who merely assumed office by operation of law can run for the same position for three consecutive terms since he was not elected to the position. Likewise, an officer who has been elected and had served three consecutive terms will not be disqualified to run for a recall election for the same position since there has been an interruption in the continuity of terms of office after his third term. Lastly, an official who did not serve a full term for having been declared to have lost an election contest can still run for the same position since the requirements are not complied with.

On the other hand, the rule is applicable to disqualify a local elective official to run for a fourth consecutive term over the same position even if the municipality has been converted into a city, or when a local elective official has been declared to have lost an election only after he had already served his full term.

Reynold L. Orsua is an Associate of the Litigation and Dispute Resolution (LDRD) of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).

source:  Businessworld

Can Comelec extend the non-extendible?

THE Commission on Elections’ en banc resolution allowing an extension of the final and non-extendible June 8 deadline for the filing of Statements of Contributions and Expenses (SOCE) by candidates in the May 9 elections constitutes not only an extremely dangerous precedent but, above all, a grave abuse of discretion and a patent violation of the law. It is null and void ab initio.

Commissioner Christian Robert Lim is reportedly set to resign today as head of the finance campaign office, in protest against the ruling, which seeks to set aside the provision of the Omnibus Election Code and Comelec Resolution 9991, by a vote of four to three. Both PDP-Laban, the President-elect’s adopted political party, and Vice President Jejomar Binay’s UNA have denounced the ruling as illegal, without saying whether they are taking any concrete action against it or not.

To the Supreme Court
For his part, election lawyer Manuelito Luna, who figured prominently in the celebrated citizenship case against the defeated presidential candidate Grace Poe Llamanzares, will be asking the Supreme Court in his capacity as a concerned citizen and taxpayer to invalidate the Comelec ruling and restore the “status quo ante.” This should happen sometime today.

Under the law, as clarified by Comelec Resolution 9991, a winning candidate may not take his oath of office if he or his party fails to file his SOCE within the deadline fixed by law. All the candidates have filed their individual SOCEs on time, but their party—the ruling Liberal Party—has failed to do so and has asked for a 14-day extension of the non-extendible deadline.

The campaign finance office called for strict compliance with the law and denial of the requested extension, but the banc decided to extend the deadline until June 30. The law does not grant the Comelec any such authority, but speaking for the banc, Commissioner Rowena Guanzon, one of the four commissioners who voted to extend, said that “procedural rules cannot prevail over the people’s sovereign will.”

An absurdity?
Justifying the ruling, the Comelec spokesman pointed out that if the law were followed to the letter, the Vice-President-elect, five senators-elect, 40 governors-elect and 115 congressmen-elect would not be able to assume office, with incalculable adverse consequences to the operations of the entire government. This would be an absurdity, the spokesman said.

We respectfully disagree. Indeed, it would be most unfortunate if all these elected candidates were barred from taking their oath of office because their party had failed to do its basic duty. But this would be merely a consequence of the normal operations of the law. There is nothing absurd about the law, so by no means could we call it an absurdity.

Indeed, it would be an absurdity if, during the time that the candidates and the LP were preparing their SOCE, a major earthquake, tsunami, epidemic, terrorist attack or any other kind of force majeure struck and destroyed the nation’s cities and countryside, and all LP offices everywhere, and yet the Comelec insisted that they submit their SOCE on time, as if the national calamity did not exist.

Without any force majeure occurring, a real absurdity would arise if hundreds of winning candidates and their respective parties neglected to comply with the simplest legal requirement and yet were spared from any penalty because those who were supposed to enforce the law had decided to bend it, believing they possessed a power they did not have. What the Comelec has done to prevent a so-called absurdity is the real absurdity, which seeks to trample upon the law.

Guanzon’s statement
Commissioner Guanzon’s statement that procedural rules cannot rise above the people’s sovereign will, properly applied and understood, merits no debate. But there are written and unwritten rules attached to the grant of a sovereign mandate to ensure its validity and legitimacy. One such condition is that no candidate must accept financial contributions from an illegal or prohibited source nor spend more money in excess of the amount allowed by law.

For this purpose, the candidate and his party are required to submit a complete and accurate SOCE within an inflexible period fixed by law. This requirement cannot be waived because it is supposed to perfect a candidate’s and his party’s participation in the electoral process. If the SOCE shows that the candidate or his party had received donations from an illegal source, or had spent more money than was allowed by law, then he would have to be summarily disqualified by the Comelec, regardless of his claim to a “landslide victory.”

There have been high-profile examples of this, the latest being the popular candidate E.R. Ejercito, who won the 2013 governorship of Laguna, but was disqualified for spending more than he was allowed by law, according to his SOCE.

Ministerial act
All winning candidates will have to take their oath of office at noon of June 30 in accordance with law. The June 8 deadline allows the Comelec a reasonably sufficient time to go through the SOCE of winning candidates to see whether each of them, together with their respective political parties, had complied with the law governing campaign contributions and expenses. Extending that deadline to June 30 would deny the Comelec the material time needed to examine the SOCE properly, especially those filed on the last day or the last few days.

It would thus reduce the filing of the SOCE, and its reception by the Comelec, into mere ministerial acts. The Comelec would no longer have the material time needed to discover that a particular candidate was in willful violation of the law governing the execution of this important document and had to be prevented from taking his oath of office.

The fact that the Vice-President-elect, five senators-elect, 40 governors-elect, and 115 congressmen-elect will not be able to take their oath of office because of the LP’s failure to comply with the law is not a problem of the Comelec, whose duty it is to enforce the law, but solely that of the candidates and the LP, which has failed to comply with the law. This should ultimately lead to LP’s disenfranchisement as an “irresponsible party,” even without the massive post-election migration of its members to Duterte’s new party.

Scary scenario
I am not competent to describe the scenario that should obtain if and when the elected candidates mentioned above are unable to assume office. I can only speculate it would be scary. In the case of the Vice President, the Constitution provides that “whenever there is a vacancy in the Office of the Vice President during the term for which he has been elected, the President shall nominate a Vice President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately.”

Complicated VP
But aside from the SOCE issue confronting Vice-President-elect Leni Robredo, her election is under serious question by her closest rival, Sen. Ferdinand (Bongbong) Marcos, Jr., who has alleged massive fraud, particularly in Muslim Mindanao, and has announced his intention to file a formal election protest before the Presidential Electoral Tribunal, on June 28. This complicates the issue of vacancy in the Office of the Vice President, and how the above-quoted constitutional provision will apply.

Effects on Senate presidency
With respect to the vacancies occurring in Congress, the Constitution provides for special elections to fill up such vacancies. Meantime, the five Senate vacancies would reduce the 24 regular Senate members to only 19; in the House, the 115 vacancies would leave 177 active members. Both Houses would still have enough members to constitute a majority, but in the Senate, the five vacancies could alter the fight for the Senate presidency.

Sen. Aquilino Pimentel 3rd, the PDP-Laban’s lone member, was earlier reported to have sewed up with the support of the LP. But with Senate President Frank Drilon, top-ranking LP, and four others out in the cold, another senator could emerge to challenge Pimentel’s prospective Senate presidency.

In the case of the 40 governors-elect, they will simply be succeeded by their vice governors, thereby ensuring the uninterrupted operations of the provincial governments concerned. The LGUs are the least likely to be adversely affected by these developments.

Simplifying govt
Should the Supreme Court sustain the Comelec and confirm the extension of the SOCE deadline, President-elect Duterte might be encouraged to seriously consider his earlier “promise” to remove unwanted and unhelpful elements in government and simplify the running of government.

The simplification of his inaugural appears to be but a first step. Instead of holding the inaugural at the Rizal Park, where past Presidents had held theirs, President-elect Duterte will hold his at the Rizal Ceremonial Hall of Malacañang Palace, before a limited and controlled audience of 500 guests. He will be sworn into office by Associate Supreme Court Justice Bienvenido Reyes, a fraternity brother of the Lex Talionis Fraternitas at the San Beda College of Law, where they both studied law.

The choice of Reyes to administer the incoming President’s oath of office is reported to have caused “palpitations” on the part of Chief Justice Maria Lourdes Sereno, whom President B.S. Aquino 3rd pole-vaulted from the most junior position to her present post after he had the late former Chief Justice Renato Corona impeached and removed from office on one “non-impeachable” offense by paid members of the House and the Senate impeachment court. At the time Reyes, a 2011 Aquino appointee, was offered the chance to become Chief Justice, but he formally declined being included in the “short list” of nominees “out of respect for the senior justices.”

Chief Justice fears
Although Duterte has not telegraphed any moves against the Chief Justice, Sereno appears to entertain fears that what Aquino had done to Corona the new President might do to her, without his having to invent any valid grounds for her impeachment and removal the way Aquino invented grounds against Corona. It is not clear whether Sereno has been invited to the Duterte inaugural.

Although the Vice President is traditionally sworn into office together with the President, this will not happen this time. Even if the High Court resolves the SOCE issue in favor of the LP, and all legal obstacles to Leni Robredo taking her oath are withdrawn, the plan is for her to hold her own separate oath-taking somewhere else. We do not have the precise details as of now, but we can be sure it will not be held at the Quirino Grandstand, and neither Sereno nor any other SC justice will administer her oath. Regardless of the venue, according to reports, a barangay official from Caramoan, Camarines Sur, will do the honors.

The apparent motif is one of extreme simplicity, which should create the intended news headlines. But the barangay official concerned might not have the competent authority to administer the oath to the incoming Vice President, especially if he or she would perform the act in Metro Manila, far away from his or her territorial jurisdiction.

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source:  Manila Times