'Errors' in Comelec reso on COC cited

by Aries Rufo, abs-cbnNEWS.com/Newsbreak

Posted at Oct 21 2009 06:32 PM | Updated as of Oct 22 2009 08:13 PM

MANILA - Could this be an ominous sign that the automated elections would be rough sailing?

A poll lawyer has questioned a recent resolution issued by the Commission on Elections (Comelec) on the filing of certificate of candidacy (COC) and certificate of nomination (CON), saying it was filled with at least 12 errors and inconsistencies.

In a letter to the Comelec en banc, veteran election lawyer Sixto Brillantes noted that the resolution appears to have been prepared with minimal study and research, “leading to an eerie feeling that, when considered in the light of the forthcoming automated elections….one becomes apprehensive that future resolutions might follow suit and be relate with similar infirmities.”

Brillantes added: “The purpose of this communication is to alert the Commission that its resolution must first undergo a meticulous drafting and review before promulgation, all intended to ensure that complications and infirmities are done away with.”

The poll body on October 6 promulgated Resolution 8678 providing the guidelines in the filing of COCs and CONs for those running in the May 2010 polls.

It touched on the deadline for the filing of the COC, the manner of disqualification, substitution of candidates, among others.

The Comelec, in the resolution, said the deadline in the filing of COC will be from November 20 to 30, ahead of the usual deadline to allow for the printing of names in the ballots.

In conflict with other laws

Brillantes observed that some provisions in the resolution are in conflict with current laws.

For instance, the resolution discriminates on substitution of a candidate who has withdrawn, as compared to substitution in case of death or disqualification.

Resolution 8678 stated that the substitute for a candidate who has withdrawn has only until December 14 to file his or her COC. On the other hand, the resolution states that the substitute for a candidate “who died or suffered permanent incapacity or disqualified by final judgment may file his certificate of candidacy up to mid-day of election day."

Brillantes pointed out that “existing laws do not impose a separate deadline for the substitution of official candidates who withdraws, from one who dies or is disqualified.”

He said the Comelec is attempting to supercede the law with a mere resolution by imposing different deadlines on substitution.

Adding conflict or confusion is Section 12 which states that “any person who has filed a COC may at any time before election day file…. personally a statement of withdrawal under oath..”

Brillantes said this section allows withdrawal “anytime before election day.”

Premature campaigning rule

Brillantes also noted that resolution 8678 is in contrast with the recent ruling of the Supreme Court on premature campaigning when it stated the withdrawal of COC “shall not affect whatever civil, criminal, or administrative liabilities a candidate may have incurred.’

In the SC ruling on the Penera case, the court said the illegal act of premature campaigning can only be taken against a candidate at the start of the campaign period. This means, Brillantes said, that “no liability is incurred when one withdraws his COC before the start of the campaign period.”

He argued that once a candidate withdraws his COC, before the start of the campaign period, he/she is already absolved of any liability.

The poll lawyer, who has been offered but declined to become a commissioner in the past, also questioned Sec. 5 of the resolution that states that the COC shall be filed on regular days, from November 20 to 30, during office hours.

Only 7 days for filing

Brillantes said regular days are commonly referred to as regular working days, and Nov. 21 and 22 and Nov. 28 and 29 fall on Saturdays and Sundays. He noted that November 30 is a holiday (Bonifacio Day).

“Thus, would this mean that there will 7 days available for the filing of COC?” he asked. He also queried whether the actual deadline is Dec. 1 considering that Nov. 30 is a holiday.

The section of nuisance candidates is also, at most, “unclear,” Brillantes said, since the automation law states that applicants will only be considered official candidates at the start of the campaign period.

The Comelec said that a petition to declare a candidate a nuisance shall be filed within five days from the last day of the filing of COC.

“How can one file a nuisance suit come Dec. 5 against a person who files his COC on Nov. 30 when the automation provides that he is not yet a candidate until the start of the campaign period?” he said.

In a phone interview, Brillantes said he wanted to call the attention of the Commission en banc to these inconsistencies to avoid further confusion. He noted that the Comelec would be issuing more resolutions to govern the conduct of the automated elections.

“At least, they could be forewarned and could issue amendatory resolutions to clarify matters,” he said.