Go v. COMELEC

Go v. COMELEC

FACTS:

Petitioner is the incumbent representative of the Fifth District, province of Leyte, whose term of office will expire at noon on 30 June 2001.
On 27 February 2001, petitioner filed with the municipal election officer of the municipality of Baybay, Leyte, a certificate of candidacy for mayor of Baybay, Leyte.

On 28 February 2001, at 11:47 p.m., petitioner filed with the provincial election supervisor of Leyte, with office at Tacloban City, another certificate of candidacy for governor of the province of Leyte. Simultaneously therewith, she attempted to file with the provincial election supervisor an affidavit of withdrawal of her candidacy for mayor of the municipality of Baybay, Leyte. Hiowever, the provincial election supervisor of Leyte refused to accept the affidavit of withdrawal and suggested that, pursuant to a COMELEC resolution, she should file it with the municipal election officer of Baybay, Leyte where she filed her certificate of candidacy for mayor.

At that later hour, with only minutes left to midnight, the deadline for filing certificates of candidacy or withdrawal thereof, and considering that the travel time from Tacloban to Baybay was two (2) hours, petitioner decided to send her affidavit of withdrawal by fax4 to her father at Baybay, Leyte and the latter submitted the same to the office of the election officer of Baybay, Leyte at 12:28 a.m., 01 March 2001.5 On the same day, at 1:15 p.m., the election officer of Baybay Leyte, received the original of the affidavit of withdrawal.6

On 05 March 2001 respondent Montejo filed with the provincial election supervisor of Leyte, at Tacloban City a petition to deny due course and/or to cancel the certificates of candidacy of petitioner. Respondent Antoni filed a similar petitions, namely, that for mayor of Baybay, Leyte, and that for governor of Leyte, thus, making her ineligible for both.

On 06 March 2001, Atty. Manuel L. Villegas, the provincial election supervisor of Leyte, by 1st indorsement, referred the cases to the Commission on Election, Manila, Law Department, on the ground that he was inhibiting himself due to his prior action of refusing to receive the petitioner's affidavit of withdrawal tendered simultaneously with the filing of the certificate of candidacy for governor on 28 February 2001.

In the meantime, the Law Department, COMELEC, under Director Jose P. Balbuena, made a study of the cases without affording petitioner an opportunity to be heard or to submit responsive pleadings. On 05 April 2001, they submitted a report and recommendation to the COMELEC en banc.

"Petitioners' ground to deny due course and/or to cancel the said certificate of candidacy is anchored on Section 73 of the Omnibus Election Code

"Moreover, petitioners contended that CATALINA LOPEZ LORETO-Go is ineligible to run either Mayor of Baybay, Leyte or Governor of Leyte Province.

"Based on the certified list of candidate for the provincial candidates of Leyte on March 7, 2001, the certificate of candidacy of Catalina Lopez Loreto-Go for the position of Governor of Leyte was filed with the Office of the Provincial Election Supervisor on February 28, 2001 at 11:47 p.m., the last day for filing certificates of candidacy.

"In support of the petitions of Atty. Montejo and Atty. Antoni, is a certified machine copy of the affidavit of withdrawal of Catalina L. Loreto-Go, which was filed on march 01, 2001 at the Office of the Election Officer of Baybay, Leyte, which she filed on February 28, 2001.

"The affidavit of withdrawal of Catalina Loreto-Go, a portion of which reads:

"1. That last February 27, 2001 I filed my certificate of candidacy for mayor for the MUNICIPALITY OF BAYBAY, LEYTE;

"2. That due to political exigency and influence form my political leaders urging me to run for mayor of the Municipality of baybay, leyte, I have no other recourse but to follow desire of my political constituents;

"3. That therefore, I am formally withdrawing my certificate of candidacy for Mayor of the Municipality of Baybay, leyte and in it stead I am formally filing my certificate for Governor of Leyte.

"A careful scrutiny and examination of Catalina Loreto-Go certificate of candidacy for Governor of Leyte Province although filed on the last day of February 28, 2001, her affidavit of withdrawal for Mayor of Baybay, Leyte, was filed only on March 1, 2001 or one (1) day after the February 28, 2001 deadline. In other word, there are two (2) certificates of candidacy filed by Catalina Loreto-Go, one for governor of Leyte and the other for Mayor of Baybay, Leyte.

"Clearly, on March 1, 2001 when she filed her affidavit of withdrawal for Mayor of baybay, Leyte, both her certificates of candidacy for Mayor of Baybay, leyte and Governor of Leyte were still subsisting and effective making her liable for filing two certificates of candidacy on different elective positions, thus, rendering her ineligible for both positions, in accordance with Section (1) (b) of Comelec Resolution No. 3253-A.

On 23 April 2001, the COMELEC en banc approved the recommendation of the Director, Law Department and adopted the resolution in question as set out in the opening paragraph of this decision.

Hence, this petition.

ISSUES:

I. Is petitioner disqualified to be candidate for governor of Leyte and mayor of Baybay, Leyte because she filed certificates of candidacy for both positions?

II. Was there a valid withdrawal of the certificate of candidacy for municipal mayor of Baybay, Leyte?

(a) Must the affidavit of withdrawal be filed with the election officer of the place where the certificate of candidacy was filed?

(b) May the affidavit of withdrawal be validly filed by fax?

III. Was there denial to petitioner of procedural due process of law?

HELD:

We grant the petition. We annul the COMELEC resolution declaring petitioner disqualified for both positions of governor of Leyte and mayor of the municipality of Baybay, Leyte. The filing of the affidavit of withdrawal with the election officer of Baybay, Leyte, at 12:28 a.m., 1 March 2001 was a substantial compliance with the requirement of the law.14 We hold that petitioner's withdrawal of her certificate of candidacy for mayor of Baybay, Leyte was effective for all legal purposes, and left in full force her certificate of candidacy for governor.
Section 73, Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, provides that:

"SEC. 73. Certificate of candidacy. - No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.

"A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath.

"No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who has file more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices."

There is nothing in this Section which mandates that the affidavit of withdrawal must be filed with the same office where the certificate of candidacy to be withdrawn was filed. Thus, it can be filed directly with the main office of the COMELEC, the office of the regional election director concerned, the office of the provincial election supervisor of the province to which the municipality involved belongs, or the office of the municipal election officer of the said municipality.
While it may be true that Section 12 of COMELEC Resolution No. 3253-A, adopted on 20 November 2000, requires that the withdrawal be filed before the election officer of the place where the certificate of candidacy was filed, such requirement is merely directory, and is intended for convenience. It is not mandatory or jurisdictional. An administrative resolution can not contradict, much less amend or repeal a law, or supply a deficiency in the law. Hence, the filing of petitioner's affidavit of withdrawal of candidacy for mayor of Baybay with the provincial election supervisor of Leyte sufficed to effectively withdraw such candidacy. the COMELEC thus acted with grave abuse of discretion when it declare petitioner ineligible for both positions for which she filed certificates of candidacy.
There is another important moiety that affects the validity of the COMELEC resolution canceling petitioner's certificates of candidacy. It is that petitioner was deprived of procedural due process of law. The petition to cancel her certificate of candidacy or to deny due course to both were filed before the provincial election supervisor of Leyte who inhibited himself and referred the cases to the Law Department, COMELEC, Manila. On 11 April 2001, the COMELEC, First Division, acting on the first indorsement of Atty. Villegas approved his inhibition and required the provincial election supervisor of Leyte to immediately forward his copy of the records of these cases to the Regional Election Director, Region 08, at Tacloban, Leyte, for hearing. On 18 April 2001, Regional Election Director, Region 08, Atty. Adolfo A. Ibañez issued summons/subpoena to petitioner Go to submit her consolidated answer to the petitions and counter-affidavits including position paper within three (3) days form notice. On 23 April 2001, petitioner submitted her consolidated position paper. On 25 April 2001, at 9:00 a.m., Director Ibañez set the cases for hearing for reception of evidence of the parties

In the meantime, however, the Law Department, COMELEC conducted an ex-parte study of the cases. It did not give petitioner an opportunity to be heard. Petitioner was not required to submit a comment or opposition to the petitions for cancellation of her certificates of candidacy and/or for disqualification. It did not set the cases for hearing. It was not even aware of the proceedings before Director Ibañez in Tacloban. After an ex-parte study of the cases, on 05 April 2001, the Law Department submitted its report and recommendation, approved by Director Balbuena, to the COMELEC en banc.

During the oral argument on 07 May 2001, Director Balbuena candidly admitted that the COMELEC Rules of Procedure requires that notice be given to the respondent . Indeed, Section 3, Rule 23 of said Rules on petition to deny due course to or cancel certificates of candidacy explicitly provides:

"Rule 23 - Petition to Deny Due Course to or Cancel Certificates of Candidacy
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"Sec. 3. Summary Proceeding. - The petition shall be heard summarily after due notice.

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