Bar Q and A #35

Pasyo Maagap would be entitled to occupy the position of Mayor upon disqualification of Gandang Bai on the basis of the petition to deny due course or cancel her certificate of candidacy under the provisions of Section 78 of the Omnibus Election Code.

The rule is that “an ineligible candidate who receives the highest number of votes is a wrongful winner. By express legal mandate, he could not even have been a candidate in the first place, but by virtue of the lack of material time or any other intervening circumstances, his ineligibility might not have been passed upon prior to election date. Consequently, he may have had the opportunity to hold himself out to the electorate as a legitimate and duly qualified candidate. However, notwithstanding the outcome of the elections, his ineligibility as a candidate remains unchanged. Ineligibility does not only pertain to his qualifications as a candidate but necessarily affects his right to hold public office. The number of ballots cast in his favor cannot cure the defect of failure to qualify with the substantive legal requirements of eligibility to run for public office.” (Maquiling v. COMELEC, GR No. 195649, April 16, 2013)

Accordingly, Gandang Bai “being anon- candidate, the votes cast in his favor should not have been counted.” This leaves Pasyo Maagap as “the qualified candidate who obtained the highest number of votes. Therefore, the rule on succession under the Local Government Code will not apply.” (Maquiling v. COMELEC, GR No. 195649, April 16, 2013).

Agripina is eligible to run as member of Congress. Repatriation results in the recovery of a person’s original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a Filipino citizen. If she were originally a natural-born citizen before she lost her Philippine citizenship, she would be restored to her former status as a natural-born Filipino. (Bengson III vs. HRET, G.R. No. 142840, May 7, 2001. See also: Parreno v. Commission on Audit, G.R. No. 162224, June 7, 2007, and Tabasa v. Commission on Elections, G.R. Nos. 221697 & 221698-700, March 8, 2016)

RA 9225 makes a distinction between those natural-born Filipinos who became foreign citizens before and after the effectivity of RA No. 9225. For those who were naturalized in a foreign country, they shall be deemed to have reacquired their Philippine citizenship which was lost pursuant to CA 63. In the case of those who became foreign citizens after RA 9225 took effect, they shall retain Philippine citizenship despite having acquired foreign citizenship, provided they take the oath of allegiance under the new law.

Considering that petitioner was naturalized as a Canadian citizen prior to the effectivity of RA 9225, she belongs to the first category of natural-born Filipinos who lost their Philippine citizenship by naturalization in a foreign country, under the first paragraph of Section 3. As the new law allows dual citizenship, she was able to reacquire her Philippine citizenship by taking the required oath of allegiance (See Bengson v. HRET and as affirmed by Poe- Llamanzares v. COMELEC, G.R. No. 221697, March 8, 2016)

YES, Anastacia can still run as President in the next election since she has served for less than four years. Section 4, Article VII provides that “no person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.”

(a) The argument of X is not correct. Section 14 of RA 9006 (Fair Elections Act) reads: “Sec. 14. Repealing Clause. - Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed.” Section 47 of BP 881, which deemed elective officials ipso facto resigned when they file their Certificate of Candidacy, is inoperative, and therefore W may still continue office.

(b) W would be considered ipso facto resigned. Under Sec. 66 of the Omnibus Election Code (BP 881), “any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.” W, as Undersecretary of the Department of National Defense, is an appointive official and therefore falls under this provision.

a. A was considered ipso facto resigned upon the filing of his certificate of candidacy, because being a City Legal Officer, he is an appointive official. Section 66 of the Omnibus Election Code provides that any person holding a public appointive office shall be considered ipso facto resigned upon the filing of his certificate of candidacy.

b. B is not considered ipso facto resigned. Section 67 of the Omnibus Election Code considers any elective official ipso facto resigned from office upon his filing of a certificate of candidacy for any office other than the one he is holding except for President and Vice-President, was repealed by the Fair Election Act.

1. The correct answer is (e). Section 14 of the Fair Election Act repealed Section 67 of the Omnibus Election Code, which provided that any elected official, whether national or local, who runs  for any office other than the one he is holding in a permanent capacity, except for President and Vice President, shall be considered ipso facto resigned from his office upon the filing of his certificate of Section 14 of the Fair Election Act likewise rendered ineffective the first proviso in the third paragraph of Section 11 of Republic Act No. 8436.

Consequently, Pedro Reyes can run for Mayor without giving up his position as Vice-Mayor. He will have to give up his position as Vice-Mayor upon expiration of his term as Vice-Mayor on June 30, 2004.

2. The answer is the same if Pedro Reyes is a Congressman of Quezon City, because the repeal of Section 67 of the Omnibus Election Code covers both elective national and local officials.

Under Rule No. 19 of the rules for the appreciation of ballots in Section 211 of the Omnibus Election Code, stray ballot is one cast in favor of a person who has not filed a certificate of candidacy or in favor of  a candidate for an office for which he did not present himself. Although the Code does not provide for stray ballot, it is presumed that stray ballot refers to stray vote.

YES. The rule is that “an ineligible candidate who receives the highest number of votes is a wrongful winner”. By express legal mandate, he could not even have been a candidate in the first place, but by virtue of the lack of material time or any other intervening circumstances, his ineligibility might not have been passed upon prior to election date. Notwithstanding the outcome of the elections, his ineligibility as a candidate remains unchanged. Ineligibility does not only pertain to his qualifications as a candidate but necessarily affects his right to hold public office. The number of ballots cast in his favor cannot cure the defect of failure to qualify with the substantive legal requirements of eligibility to run for public office.

Accordingly, the disqualified candidate, being a non-candidate, the votes cast in his favor should not have been counted. This leaves the candidate who obtained the second-highest vote as the qualified candidate who actually obtained the highest number of votes. (Maquiling v. COMELEC, GR No. 195649, April 16, 2013)

(a) The sole act of using a foreign passport does not divest Anacleto of his Filipino citizenship which he acquired by repatriation. By representing himself as a Spanish citizen; however, Anacleto voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant Anacleto represented himself as a Spanish citizen by using his Spanish passport. He is, thus, disqualified for being a dual citizen, and his CoC should be cancelled. (Macquiling v. Comelec, G.R. No. 195649, April 16, 2013)

NOTE: The use of the foreign passport amounts to a recantation of the Oath of Renunciation required to qualify one to run for an elective position.

(b) The rule on succession would not apply if the permanent vacancy was caused by one whose certificate of candidacy was void ab initio. Specifically with respect to dual citizens, their certificates of candidacy are void ab initio, because they possess "a substantive [disqualifying circumstance] [existing] prior to the filing of their certificate of candidacy. "Legally, they should not even be considered candidates. The votes cast for them should be considered stray and should not be counted.

In cases of vacancies caused by those with void ab initio certificates of candidacy, the person legally entitled to the vacant position would be the candidate who garnered the next highest number of votes among those eligible; in this case, it was Arnaldo. (Chua v. COMELEC, G.R. No. 216607, April 5, 2016)

a.) It is the Commission on Elections En Banc which should decide the Since it involves the exercise of the administrative powers of the Commission on Election, Section 3, Article Ix-C of the Constitution is not applicable (Baytan V. COMELEC, 396 SCRA 703).

b.) The petition should be Under Section 80 Of the Omnibus Election Code, to be liable for premature campaigning, he must be a candidate and unless he filed his CoC, he is not a candidate (Lanot Vs. Commission On Elections, 507 Scra 114).