[OPINION] Is it possible Duterte’s candidacy was void from the beginning?

Many were stunned when President Rodrigo Duterte recently issued a proclamation seeking to void the amnesty of that Senator Antonio Trillanes IV received in 2011 from then-president Benigno Aquino III.

Duterte and his legal advisers are citing alleged “defects” in the opposition senator’s amnesty papers – particularly, that the grant was signed by the defense secretary, not by the president himself – would supposedly render the amnesty “void ab initio” or void from the beginning. (The proclamation granting amnesty was signed by Aquino, and concurred to by Congress, while the list attached to it, specifying some 100 names, was signed by defense secretary Voltaire Gazmin.)

Inevitably, observers are raising the issue that there was an equally contentious “defect” in the certificate of candidacy (COC) for president filed in 2015 by Martin Diño, whom then-Davao City mayor Duterte later substituted.

Diño filled up the COC for mayor, not president, and filed it with the Law Department of the Commission on Elections (Comelec) at the central office in Manila. While he changed the label of his document to “President,” he failed to alter the remaining parts of the COC to conform with the changes. Thus, despite the title “Certificate of Candidacy for President,” the sentence next to the instruction box read: “I hereby announce my candidacy for the position of MAYOR, City/Municipality of Pasay City…in the May 09, 2016 National and Local Elections.”

As we now know, the substitution was eventually admitted by the Comelec, Duterte won the election, and is set to serve as president until 2022.

Now, following the Duterte administration’s logic about a “defect” in a document rendering void Trillanes’ amnesty grant, didn’t the “defect” in Diño’s COC also made it void ab initio, thus rendering void Duterte’s substitution, and therefore his presidency?

It could have caused Duterte the presidency, if only anybody pursued that blunder in Diño’s COC. To seasoned campaign players, major mistakes like this would have been avoided, or at least immediately spotted and corrected.

Controversies from clerical mistakes

In fact, many major election controversies stemmed from clerical mistakes in the COC.

The landmark case of Imelda Marcos (GR Number 119976, September 18, 1995) stemmed from her mistake of putting 7 months as her period of residence in her COC when the minimum residence required for members of the House of Representatives is one year.

Grace Poe’s very controversial case in 2016 (G.R. Nos. 221697 and 221698-700, March 8, 2016) –which arguably caused her the presidency – also stemmed from a mistake in her 2013 COC, where she under-declared her period of residence!

These cases should serve as a major lesson for candidates and their staff – that they have to pay close attention to their COCs.

The rule regarding COCs is found in Section 73 of the Omnibus Election Code: “No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.”

Recently, Comelec promulgated Resolution No. 10420, implementing Section 73 and setting the rules on the filing of COCs. Originally, the filing was set for October 1-5, 2018, but was later moved to October 11-12 and 15 to 17, 2018. This was after the Senate and the House of Representatives adopted separate resolutions urging Comelec to move the dates. With the new dates, feng shui experts would need to recalibrate their forecasts and predictions of the auspicious days and times to file COCs!

After the COCs shall have been filed with local Comelec offices across the Philippines, all of them are forwarded to Comelec’s central office in Intramuros, Manila, for the preparation of the final list of candidates. After that, the names which get through the Law Department’s screening will be laid out in ballot templates. Before printing, these templates are published on the Comelec website for public scrutiny, allowing the candidates to correct any typos, if any.

Taking the COCs seriously

While there were those who had been careless, there were those who took COCs seriously – rather too seriously.

One very interesting case was former senator Bong Revilla, whose popular screen name as an actor was Ramon Revilla Jr (his real name is Jose Mari Bautista). Recognizing that the public knew him better as “Bong Revilla,” he petitioned a local court in home province of Cavite to change his surname – not the first name – to “Bong Revilla” so that when candidates’ names were arranged alphabetically on the ballot, his would appear first on the list! (His name appeared as “Bong Revilla, Ramon.”)

He took advantage of the so-called “ballot order effect,” which implies that candidates who are listed earlier on the ballot will more likely receive larger shares of the vote. Studies show, for example, that moving a name from last to first on the ballot would increase a candidate’s vote share by less than 3 percentage points! That’s fairly small, but still statistically significant, especially in a tight race!

The above case was well-illustrated during the 2010 polls, when nuisance candidate Vetallano Acosta was made to run by some quarters to offload Noynoy Aquino from the top slot in the list of candidates for president (I handled this case for my former law firm). That virtual unknown Acosta still garnered 181,985 votes just by being on the top of the list!

Another guy who took it too seriously was the subject of the landmark case of Lluz vs Comelec (GR No. 172840, June 7, 2007). Respondent Caesar O. Vicencio declared in his COC that he was a certified public accountant (CPA) by profession, when in fact he was not. Documents were presented to show that while he had taken the October 3, 1993, CPA board examinations, he obtained a failing mark of 40.71%.

A case had been filed to cancel his COC on the grounds of material misrepresentation. The Supreme Court dismissed the case on the ground that while there was this misrepresentation, one’s occupation was not material fact – that whether he was an accountant or not, he remained eligible to run. The Court It noted that, “[n]o elective office, not even the office of the President of the Republic of the Philippines, requires a certain profession or occupation as a qualification.”

Now, the question is: does this mean that one can freely put “space astronaut” or something ridiculous as his profession? One should be careful, as even when an information is not material to a candidacy, it can be taken as an act to ridicule the process. It will put into question the candidate’s seriousness in running, which is a ground not for the rejection of the COC but for nuisance petition.

It is worth repeating that the act of running for an elective office starts with the filing of the COC. By filing his COC, an aspirant declares to the world that he is vying for a particular position and that he is “eligible” to run for the position selected – meaning, he has all the qualifications and none of the disqualifications.

It is also a public invitation to scrutinize and contest any of such declarations and file the necessary cases to disqualify the candidate. For shrewd candidates this is a golden opportunity to cancel out opponents without having to go through an election – a way cheaper shortcut to get an elective post!

This is why most candidate invest so much in this document called the COC (of course, to the delight of us election lawyers). So, a piece of advice: fill up the correct form, be meticulous in filling in each and every blank, and have the entries counter-checked before filing! – Rappler.com

Emil Marañon III is an election lawyer specializing in automated election litigation and consulting. He is one of the election lawyers consulted by the camp of Vice President Leni Robredo, whose victory is being contested by former senator Ferdinand Marcos Jr. Marañon served in Comelec as chief of staff of retired Comelec Chairman Sixto Brillantes Jr. He is a partner at Trujillo Ansaldo and Marañon (TAM) Law Offices.

*Photos by Alecs Ongcal (Duterte) and Ben Nabong (certificate of candidacy)/Rappler