Thursday, 19 November 2009
Past cases show replacement candidates are not allowed when certificates are null and voidThe son cannot replace the father.
Senator Jinggoy Estrada cannot substitute for his father in the event that the Commission on Elections (Comelec) declares former President Joseph Estrada ineligible to again run for president next year.
The Supreme Court has ruled in previous cases that a certificate of candidacy (CoC) that is declared null and void cannot be used by a substitute candidate.
An unfavorable Comelec decision on Estrada’s candidacy is expected to be elevated to high court, which will be the final arbiter.
The younger Estrada has declared his readiness to fill in the shoes of his father in the event that the poll body and the SC rule that he is no longer eligible to seek the presidency.
The Constitution states that “the President” cannot run for re-election. Estrada’s camp has argued that the ban applies only to an incumbent. Estrada has pointed out, too, that he was unable to serve a complete term.
He has picked Makati Mayor Jejomar Binay as his running mate.
Substitution rules
The rule on substitution under the Omnibus Election Code allows for replacement in case the official candidate “dies, withdraws or disqualified for any cause.”
It does not allow substitution when the certificate of candidacy is void from the start, according to the Supreme Court.
In Miranda versus Abaya and Comelec, the tribunal stressed that substitution does not apply in cases where the CoC of the candidate to be replaced has been denied due course and cancelled under Section 78 of the Omnibus Election Code.
Section 78 states that, in case a person who has filed his certificate of candidacy has committed false misrepresentation, a petition to cancel the certificate of candidacy may be filed against the candidate.
The Miranda case involved a father and his son in the 1998 national elections. Joel Miranda substituted for his father Jose. An opponent alleged that Jose’s CoC was null and void, a position which was sustained by the Comelec.
The high court ruled that “a person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidate at all cannot by, any stretch of imagination, be a candidate at all.”
A disqualified candidate can only be substituted, the court said, “if he had a valid certificate of candidacy…. If he did not have a valid certificate of candidacy, he is and was not a candidate at all.”
‘Material misrepresentation’
In an earlier decision, in Bautista versus Comelec, the court also said that “a cancelled certificate does not give rise to a valid candidacy.”
Explaining the ruling, election lawyer Romulo Macalintal said that a candidate, whose CoC has been cancelled “due to material misrepresentation,” was not a candidate to begin with and therefore cannot be substituted.
In Estrada’s case, Macalintal told abs-cbnnews.com/Newsbreak, the CoC can be the subject of a cancellation for misrepresentation since he is not eligible to run for president in the first place.
“It was as if no CoC was filed, so there is nobody to be substituted,” he said.
If Estrada files his CoC for president, the Comelec, as part of its ministerial duty, has to accept his application. However, a petition to deny due course to his CoC should be in order, considering the constitutional issues surrounding his case.
Penned by Melo
The potential case, if prolonged, could be a nightmare for the Comelec. The poll body cannot start printing of the ballots for the automated polls until it’s final that Estrada’s name should be or not be on the ballots.
“The question is, should they include or exclude his name [from the ballot] while the case is pending?” Macalintal said.
Whichever the Comelec decides, it is expected that it will reach the SC. “This is a novel case which has not happened anywhere else,” Macalintal said.
At the Comelec, the cards appeared to be stacked against Estrada.
Comelec chair Jose Melo, when he was a justice of the Supreme Court, penned Miranda versus Comelec. It was a 7-4 vote.
But Estrada can take consolation from the fact that Chief Justice Reynato Puno was among those who dissented. (abs-cbnNEWS.com/Newsbreak)
Source: http://newsbreak.com.ph/index.php?option=com_content&task=view&id=7111&Itemid=88889051
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