Substitution scenario refuses to die for ‘Bato’

MANILA, Philippines—Death, disqualification or withdrawal.

The Omnibus Election Code, which governs the conduct of elections in the Philippines, was clear about those three conditions for a candidate to file a certificate of candidacy (COC) way past deadline which this year was last Oct. 8.

The law also stated that substitution by a candidate for the one who either died, was disqualified or withdrew from the race required that the substituting candidate belong to the same political party or group as the one being substituted.

The Commission on Elections (Comelec) in Resolution No. 10695 set Nov. 15 as the deadline this year for substitution whether because of death, disqualification or withdrawal of the original candidate.

But the deadline will be longer if the original candidate actually dies or was disqualified by the Comelec. For the 2022 elections, Comelec is giving substitute candidates taking this option until mid-day of May 9, 2022, the day of the elections.

These rules are now being scrutinized in the wake of two seemingly unrelated events that happened days apart—Oct. 2 and Oct. 8.

One was the filing by Sara Duterte, President Rodrigo Duterte’s daughter, of a COC for reelection as Davao City mayor, the Dutertes’ bailiwick and hometown.

The other was the filing of a COC for president by one of the President’s closest allies—Sen. Ronald “Bato” Dela Rosa—representing a faction of the ruling PDP-Laban led by Energy Secretary Alfonso Cusi.

READ: ‘Bato’ dela Rosa is Cusi wing PDP-Laban’s standard-bearer for 2022 polls

While Sara’s declaration that she wanted to run for mayor again could be taken at face value, it became tainted by doubt when Dela Rosa declared that he was “willing to give” way to the President’s daughter if she decided to take a plunge into the presidential race after all.

Last Oct. 8, Sara said she was presenting herself again as leader of Davao City for the last time and was leaving politics during mid-year elections in 2025.

READ: Hours before COC filing deadline, Sara Duterte says to push through reelection bid as Davao City mayor

It sounded like a death knell for the campaign by groups supporting a Sara run for president, but Dela Rosa stole the show.

READ: No Sara Duterte listed for presidential race as COC filing closes

Quickly, doubts were raised over Dela Rosa’s real intent in filing a COC for president. Was he serious or just taking a spot on the queue for Sara?

Dela Rosa’s statements did not help quell suspicions that he was not serious about running for president and his last-minute filing of a COC for president was part of a script.

“Not my personal decision,” he answered when asked what drove him to join the presidential race. He quoted his party, the Cusi faction of PDP-Laban, as telling him he was the party’s only option to win the presidency.

“It’s better,” he replied when asked how he would feel if Sara substituted for him.

READ: What if Sara Duterte substitutes for dela Rosa? ‘Mas maganda,’ Bato says

“By all means, I will give way,” said Dela Rosa, Duterte’s first Philippine National Police chief, and architect of the now controversial Tokhang, an anti-drug campaign that has been blamed for hundreds of suspects being killed in police operations covered by only search warrants.

Dela Rosa’s words were not the only sources of doubt over his seriousness in running a presidential campaign. On the day he filed his COC for president, the senator wore a T-shirt emblazoned with the logos of PDP-Laban and, more revealing, Sara’s Hugpong ng Pagbabago (HNP).

Malacañang was quick to declare that Sara will not be a substitute for Dela Rosa but still it didn’t help quell the suspicions because it had a well-known precedent.

In 2015, way past the deadline for filing of COC, then Davao City Mayor Rodrigo Duterte showed up at the Comelec to file a COC for president as a substitute for Martin Diño, then official candidate for president of the still united PDP-Laban and who was at risk of being disqualified for being a “nuisance” candidate.

The scenario loomed large after Dela Rosa admitted that, if directed by the Cusi faction of PDP-Laban, he would readily withdraw his candidacy for president and give way to Sara because she had a higher chance of winning.

Paving the way

Section 77 of the Omnibus Election Code states that substitution is allowed only if the original candidate dies, is disqualified or withdraws before the elections.

If the original candidate dies, was disqualified or withdraws way past the deadline for filing of COC, he should be substituted by another candidate belonging to the same political party.

In the case of Sara and Dela Rosa, this rule would be a problem as they belonged to different political groups—Sara is with HNP while Dela Rosa is with the Cusi faction of PDP-Laban.

But a solution is already available. One of the rules issued by the Comelec allowed the substitute candidate to qualify as replacement for the candidate who died, was disqualified or withdrew if the substitute will possess a certificate of nomination from the party of the candidate being replaced.

Election Law Prof. Alberto Agra told INQUIRER.net that should Sara substitute for Dela Rosa, she only needed to have a certificate of nomination and acceptance (CONA) from Cusi’s PDP-Laban after withdrawing her COC for mayor and filing another for president.

Agra explained that the law does not prohibit one to shift coalitions. In this instance – HNP to PDP-Laban. “Since no law prohibits this, one has the right to withdraw and one has the right to replace,” he said.

“If we’re talking about Duterte, she can still be part of HNP while being affiliated with PDP-Laban. However, PDP-Laban should be the one to nominate her as a replacement for Dela Rosa,” he said.

The Supreme Court, in Sinaca vs Mula, said there was nothing in the Constitution or election laws which requires a substitute candidate to belong to the same political party as the one being substituted for a certain period of time.

“[The law] only mandates that a substitute candidate should be a person belonging to and certified by the same political party as the candidate to be replaced,” the high court decision said.

“We cannot provide for an additional requirement or condition not provided under the said provision without encroaching into the domain of the legislative department,” it said.

Reservation?

In the Philippines, Comelec Resolution No. 10695 set Nov. 15 as deadline for substitution this year.

But substitutes may file COC until May 9, 2022, which is the day of the elections, only on two conditions—the original candidate died or was disqualified with finality by the Comelec.

Agra listed instances of substitution which the Comelec allows:

1. A and B, who belong to the same coalition, withdraws COC for president and vice president then B files COC for president while A fades away.
2. A and B, who belong to the same coalition, withdraw COC for president and vice president then A files COC for vice president and B files COC for president.
3. A, of ZY coalition, withdraws COC for president, and B, of WX coalition, withdraws COC for vice president, then B seeks certification of ZY coalition to file COC for president.

In 2018, the Comelec initially said replacements for those who died, withdrew, or were disqualified can file COC until mid-day of May 13, 2019, but a backlash prompted the commission to amend the rule.

Travesty

Lawyer Howard Calleja said Dela Rosa’s last-minute filing of COC for president was an “ attempt to legally maneuver” a substitution scenario, saying it was a “ploy to make a travesty” of election laws.

A convenor of 1Sambayan, Calleja said in his Philippine Business and News column that the ploy “marred the start of the 2022 national and local elections with deception and lies.”

He said that as Dela Rosa filed his COC last Oct. 8, Dela Rosa opened possibilities not only between her and Sara, who filed COC for reelection as Davao City mayor last Oct. 2.

According to Calleja’s scenarios, these were likely to happen:

• Sara withdraws COC for mayor as Dela Rosa withdraws his for president on or before Nov. 15, the deadline for substitution. Sara files COC for president.
• Sen. Bong Go, who filed COC for vice president on Oct. 2, withdraws to allow Dela Rosa to file COC for the same position then Go files COC for president.
• Dela Rosa withdraws COC for president to allow Go to file his for the same position while Duterte, who announced he was retiring from politics and was withdrawing from the race for VP, files COC for vice president.
• Dela Rosa withdraws from presidential race to allow Sara to affiliate herself with Cusi’s PDP-Laban faction then her dad joins HNP and files COC for mayor of Davao City.

Lacking intention?

Dela Rosa said Cusi called him up at 3 p.m. on Oct. 8 with an urgent message—Dela Rosa was “the only option to continue the legacy of President Rodrigo Duterte.” Dela Rosa lost no time and proceeded to file his COC for president.

The filing came as a “shock” event on the day of the deadline of filing COC.

READ: Dela Rosa on last-minute decision on presidential run: Bahala na si Lord

Luie Tito Guia, former Comelec commissioner, said when one files COC, it was expected that he is serious about running since a COC is “bona fide intention.”

Section 69 of the Omnibus Election Code states that the Comelec may cancel a COC if one demonstrates lack of seriousness or determination in running for public office.

In an interview with ANC, Guia said a candidate should have “sincere and serious intention” to run. This meant going all the way until the day of the elections.

He said that if one’s “purpose is to be merely a placeholder, then, to me, that does not count as bona fide intention” to run for office.

READ: ‘Bato’s presidential run a mockery of elections’

Several candidates have already filed their COC for president.

These included:

• Sen. Manny Pacquiao, who filed COC last Oct. 1, or seven days before deadline
• Manila Mayor Isko Moreno, who filed COC last Oct. 4, or four days before deadline
• Sen. Panfilo Lacson, who declared his candidacy filed COC on Oct. 6, or two days before deadline
• Ferdinand Marcos Jr., the late dictator’s son, who filed COC last Oct. 6, three days before deadline
• Vice President Leni Robredo, who filed COC last Oct. 7, a day before deadline

Last Tuesday (Oct. 12), Cagayan de Oro Rep. Rufus Rodriguez proposed an “absolute ban” on substitution, saying such leeway casts a cloud of doubt on the sincerity of some candidates.

READ: Solon proposes ban vs substitution of candidates

There are two force majeure events that would necessitate substitution, however. It’s either the original candidate dies or is disqualified. These two options could remove the cloud of doubt over substitution.

TSB